Woods v. Carey, et al
Filing
315
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 08/18/14 ORDERING plaintiff's request for judicial notice filed on 11/25/13 298 is granted in part and denied in part as indicated herein. Plaintiff's re quest for judicial notice filed on 12/10/13 302 is denied. Plaintiff's request for an expert witness 297 is denied. Also, RECOMMENDING that plaintiff's motion to compel 307 construed as a motion to enforce the 2009 judgment, be gran ted. Within 30 days from the adoption of the instant findings and recommendations by the District Judge, defendant Cervantes is directed to satisfy the 2009 judgment and to file a notice of compliance with the court. Defendants' summary judgme nt motion 293 be granted in part and denied in part as follows: Granted as to 1) plaintiff's due process claim, on grounds of non-exhaustion; and 2) plaintiff's Eighth Amendment claim against defendant Carey; and denied as to plaintiff's Eighth Amendment claim against defendant Cervantes. Motions 293 and 307 referred to Judge Lawrence K. Karlton. Objections due within 14 days. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
EARNEST CASSELL WOODS, II,
12
Plaintiff,
13
14
No. 2:04-cv-01225 LKK AC P
v.
ORDER AND FINDINGS &
RECOMMENDATIONS
TOM L. CAREY, et al.,
15
Defendants.
16
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this action filed
17
18
pursuant to 42 U.S.C. § 1983. The defendants in this action are Warden Carey and
19
Administrative Appeals Coordinator Cervantes. This action is proceeding on the amended
20
complaint filed on October 28, 2004.
21
I.
22
Factual Background
The amended complaint contains two claims arising from the failure to receive dental
23
treatment while an inmate at California State Prison- Solano: (1) an Eighth Amendment claim for
24
deliberate indifference to plaintiff’s serious dental needs; and (2) a due process claim based on
25
the improper screening of plaintiff’s inmate grievances concerning the failure to receive dental
26
care. Plaintiff proceeds on claims arising from an inmate grievance filed by plaintiff on
27
December 3, 2003 (the December Grievance), which sought repair of a tooth he had broken while
28
eating on December 2, 2003. Another Eighth Amendment claim presented in this action, which
1
1
was the subject of a 2009 jury trial, arose from plaintiff’s grievance submitted on November 17,
2
2013 concerning the failure to repair a broken partial denture (the November Grievance).
3
II.
4
Procedural History
This matter is once again before the court on the motion for summary judgment of
5
defendants Carey and Cervantes based on plaintiff’s failure to exhaust administrative remedies.
6
This is the third motion regarding administrative exhaustion that defendants have filed in this
7
case.1 In order to resolve the present motion, it is necessary to understand the long and
8
complicated procedural history of this case.
9
Defendants’ first motion based on plaintiff’s failure to exhaust was originally filed on
10
December 13, 2006. ECF No. 118. The magistrate judge previously assigned to this case issued
11
Findings and Recommendations on August 3, 2007 that the motion to dismiss should be granted
12
with respect to the December Grievance concerning plaintiff’s broken tooth, but denied as to the
13
November Grievance concerning defendants’ failure to repair his partial denture. ECF No. 131 at
14
7. These Findings and Recommendations were adopted by the District Judge on February 15,
15
2008, but plaintiff filed an interlocutory appeal on March 17, 2008. ECF Nos. 162, 167.
16
While that appeal was pending in the Ninth Circuit Court of Appeals, plaintiff’s remaining
17
Eighth Amendment claim against defendant Cervantes related to his broken partial denture
18
proceeded to trial.2 On February 12, 2009, the jury returned a verdict in favor of plaintiff
19
awarding him $500 in compensatory damages and $1000 in punitive damages. ECF Nos. 230,
20
232. Plaintiff appealed various trial rulings and defendant Cervantes cross-appealed as to the
21
judgment. ECF No. 236, 245.
22
23
On July 9, 2012, the Ninth Circuit Court of Appeals reversed the grant of summary
judgment to defendant Carey in his individual capacity as well as the grant of defendant
24
1
25
26
27
28
Unlike the two prior motions, the current motion was filed as a motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure in light of the Ninth Circuit’s recent
opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014).
2
The court dismissed plaintiff’s Eighth Amendment claim seeking injunctive relief against
defendant Carey in his official capacity on December 16, 2008 finding that it was mooted by
plaintiff’s transfer to a different prison. See ECF No. 206 (Findings and Recommendations); 211
(Order adopting Findings and Recommendations).
2
1
Cervantes’s motion to dismiss the Eighth Amendment claim for plaintiff’s failure to exhaust the
2
December Grievance. Woods v. Carey, 684 F.3d 934 (9th Cir. 2012). The Court of Appeals
3
concluded that plaintiff had not been afforded contemporaneous notice of the requirements for
4
opposing these dispositive motions. Id. The case was remanded with directions that “plaintiff be
5
provided with proper notice if and when the defendants re-file either or both of the relevant
6
motions.” Id. at 941. Defendant Cervantes’s cross-appeal of the jury verdict against him and
7
plaintiff’s appeal from various other trial rulings were all affirmed in a separate unpublished
8
memorandum decision. Woods v. Carey, 488 Fed. Appx. 194 (9th Cir. 2012).
9
In light of these appeals, the remaining claims are: (1) an Eighth Amendment claim
10
against defendants Carey, in his individual capacity, and Cervantes based on plaintiff’s December
11
3, 2003 inmate grievance seeking repair of a tooth he broke while eating on December 2, 2003;
12
and (2) a due process claim based on the rejection of plaintiff’s inmate appeal as untimely.
13
Following remand, defendants filed their second motion to dismiss based on the failure to
14
exhaust administrative remedies. ECF No. 269. On June 19, 2013, the undersigned issued
15
Findings and Recommendations that the motion be denied because “[i]t is not clear from
16
defendants’ evidence whether plaintiff did, in fact, fail to file any subsequent requests for
17
treatment or appeals of the December Grievance after February 20, 2004.” ECF No. 282 at 6.
18
The undersigned found that defendants had not met their burden of establishing plaintiff’s failure
19
to exhaust in light of evidence in the record “support[ing] an inference that the December
20
Grievance, was routed on or around January 8, 2004, for whatever reason, to the Medical Appeals
21
Analyst, who did not return the December Grievance to plaintiff until February 19, 2004.” ECF
22
No. 282 at 10. Because the undersigned found that the defendant had failed to carry their burden,
23
it was not necessary to resolve the “confusion regarding the various complaints and dates” for
24
purposes of determining whether defendants had affirmatively prevented plaintiff from
25
exhausting his administrative remedies. ECF No. 282 at 10, n. 5.
26
In rejecting these Findings and Recommendations, the District Judge noted that “the
27
burden has shifted to plaintiff to show that administrative remedies were ‘effectively unavailable’
28
for the Eighth Amendment claim arising from the alleged delay in treatment for plaintiff’s broken
3
1
tooth, which was the subject of plaintiff’s December 3, 2003 grievance, and the magistrate judge
2
should consider the facts through that lens should defendants renew their 12(b) motion.” ECF
3
No. 288 at 5. By order of September 12, 2013, the motion to dismiss was denied, but defendants
4
were permitted to renew their contention that plaintiff failed to exhaust his administrative
5
remedies for either his Eighth Amendment or his due process claim arising from the broken tooth
6
and the December 3, 2003 grievance by which he sought dental treatment.” Id.
7
III.
8
9
Defendants’ Summary Judgment Motion
In their current motion, defendants Cervantes and Carey argue that plaintiff failed to
exhaust his available administrative remedies for both the Eighth Amendment and Due Process
10
claims. ECF No. 293-2 at 8.3 “It is clear from records searches of appeals submitted at CSP-
11
Solano and those maintained in the Inmate Appeals Branch, plaintiff did not appeal any
12
grievances regarding his November or December grievances to the third formal level [of review]
13
with the director.” ECF No. 293-2 at 21. Defendants further contend that plaintiff did not even
14
attempt, much less was prevented from, appealing the rejection of his December grievance to the
15
second and subsequent formal levels of review. Id. at 22.
16
In the alternative, defendant Cervantes asserts that he is entitled to summary judgment
17
because a serious medical need is not evident from the face of the December grievance and
18
because he did not intentionally deny or delay plaintiff’s dental treatment since dental staff was
19
already alerted to the problem based on their informal level of review of plaintiff’s grievances.
20
ECF No. 293-2 at 30-33, 35-38. Defendant Carey contends that he should be awarded summary
21
judgment because he did not personally participate, supervise or direct any subordinate to engage
22
in any wrongful conduct related to plaintiff’s’ dental treatment. ECF No. 293-2 at 36-38.
23
Plaintiff has simply not provided “any evidence upon which a trier of fact could conclude that
24
Carey acted with deliberate indifference.” Id. at 38.
25
3
26
27
Pursuant to the remand order of the Ninth Circuit Court of Appeals, defendants provided
plaintiff with contemporaneous notice of the requirements for opposing a motion pursuant to Rule
56 of the Federal Rules of Civil Procedure. See ECF No. 293-1; see also Woods v. Carey, 684
F.3d 934 (9th Cir. 2012).
28
4
1
As to the due process claim, defendants contend that they are entitled to summary
2
judgment as a matter of law because there is no constitutional right to a prison grievance
3
procedure.
4
IV.
5
Plaintiff’s Opposition
At the outset the court notes that plaintiff has not filed a document disputing defendants’
6
statement of undisputed facts, nor has he filed a separate statement of disputed facts. ECF No.
7
295. In this respect, plaintiff has failed to comply with Rule 56(c)(1)(A) of the Federal Rules of
8
Civil Procedure which requires that “a party asserting that a fact ... is genuinely disputed must
9
support the assertion by ... citing to particular parts of materials in the record, including
10
depositions, documents, electronically stored information, affidavits or declarations, stipulations,
11
... admissions, interrogatory answers, or other materials ....” He has also not followed Local Rule
12
260(b), which requires that any party in its opposition to a motion for summary judgment:
13
14
15
16
shall reproduce the itemized facts in the Statement of Undisputed
Facts and admit those facts that are undisputed and deny those that
are disputed, including with each denial a citation to the particular
portions of any pleading, affidavit, deposition, interrogatory
answer, admission, or other document relied upon in support of that
denial.
17
Local Rule 260(b) also states, in relevant part, that: [t]he opposing party may also file a concise
18
‘Statement of Disputed Facts,’ and the source thereof in the record, of all additional material facts
19
as to which there is a genuine issue precluding summary judgment or adjudication. The opposing
20
party shall be responsible for the filing of all evidentiary documents cited in the opposing papers.
21
See L.R. 133(j).
22
It is well-established that the pleadings of pro se litigants are held to “less stringent
23
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972)
24
(per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of procedure that
25
govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on another
26
ground by Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc). While non-
27
prisoner pro se litigants should not be treated more favorably than parties represented by
28
attorneys, unrepresented prisoners' choice to proceed without counsel “is less than voluntary” and
5
1
they are subject to the “handicaps ... detention necessarily imposes upon a litigant” .... such as
2
“limited access to legal materials” as well as “sources of proof.” Jacobsen v. Filler, 790 F.2d
3
1362, 1364–65 & n. 4 (9th Cir. 1986)). Inmate litigants, therefore, should not be held to a
4
standard of “strict literalness” with respect to the requirements of the summary judgment rule. Id.
5
The court is mindful of the Ninth Circuit's more overarching caution in this context, as noted
6
above, that district courts are to “construe liberally motion papers and pleadings filed by pro se
7
inmates and ... avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d at
8
1150. Accordingly, the court considers the record before it in its entirety despite plaintiff's failure
9
to be in strict compliance with the applicable rules. However, only those assertions in the
10
11
opposition which have evidentiary support will be considered.
In a sworn declaration, plaintiff states that “I tried everything that I could do to exhaust
12
my administrative remedies, I wrote request for interviews to the appeals coordinator and I even
13
wrote a letter to the warden complaining about the appeals problems.” ECF No. 295 at 2. He
14
also states that defendant Cervantes has rejected appeals without CDC Form 695’s. Id. As
15
evidence of the effective unavailability of administrative remedies plaintiff attaches 29 CDC 695
16
screen out forms; three memoranda regarding “staff not complying with the CDCR appeal time
17
restraints and informal and formal appeal practices…[,] and a copy of a letter asking the appeals
18
coordinator to hear and process appeals.” Id. at 11.
19
With respect to his December Grievance, plaintiff asserts that defendant Cervantes mailed
20
it back to him instructing him to forward the 602 appeal to the medical appeals analyst. Id. at 13.
21
Plaintiff complied and the medical appeals analyst directed it back to him, after which he sent it
22
back to defendant Cervantes. ECF No. 295 at 13. In this manner plaintiff attempted to exhaust
23
his administrative remedies on three separate occasions, but he was prevented from doing so
24
based on the mistaken information provided to him. Id. at 15-16. Plaintiff further asserts that the
25
51 day delay between the signature date on the first formal level appeal and defendant Cervantes’
26
receipt of it is due to the deficient mail policy at CSP-Solano. Id. at 14.
27
28
As to the merits of his claims, plaintiff further asserts, without any supporting evidence,
that defendant Carey implemented the dental and administrative appeals policies in question here.
6
1
ECF No. 295 at 3. Plaintiff generally alleges that the delay in treating his broken tooth led to
2
further harm in the form of stomach problems which were exacerbated by not being able to eat
3
correctly based on his broken dental partial. Id. at 9-10.
4
V.
5
Defendants’ Reply and Objections to Plaintiff’s Evidence4
In their reply, defendants point out that plaintiff’s opposition generally consists of “claims
6
not alleged in the Amended Complaint and. . . allegations against non-party individuals in
7
unrelated incidents occurring as late as 2006.” ECF No. 299 at 1. Defendants assert that plaintiff
8
has not supported his allegations that his appeals were improperly screened out to prevent
9
exhaustion and that he “does not and cannot dispute that the separate CDC-695 screening form
10
refers to routing procedures for the informal level appeal rather than the formal level.” ECF No.
11
299 at 2. In addition, defendant Carey points out that plaintiff has not provided any evidence of
12
his personal involvement in the alleged violations or evidence of any causal connection between
13
Carey’s conduct and the constitutional deprivations. ECF No. 299 at 3-4. According to
14
defendant Cervantes, plaintiff conceded that “he did not experience pain relating to the December
15
2003 dental issue and therefore fails to prove a serious medical need.” Id. at 4 (citing ECF No.
16
295 at 7).
17
Defendants further object to plaintiff’s request for judicial notice of his exhibits, with the
18
exception of excerpts from the 2009 trial transcripts, on grounds that plaintiff’s exhibits are
19
hearsay, irrelevant, not properly authenticated, and not in a sworn or certified format. ECF No.
20
299-1. At the summary judgment stage, the court focuses not on the admissibility of evidence's
21
form but on the admissibility of its contents. Block v. City of Los Angeles, 253 F.3d 410, 418–19
22
(9th Cir. 2001). The substance of plaintiff’s exhibits all post-date the timeframe involved in the
23
screen out of his December Grievance. In fact, the majority of his exhibits date from 2006. To
24
the extent that the memoranda pertaining to the processing time for informal level grievance
25
responses date from the relevant time period of 2003 and 2004, there is no explanation provided
26
by plaintiff as to why the contents of these documents are relevant. ECF No. 295 at 27-29.
27
28
4
Defendants’ motion for an extension of time to file the reply brief one day late is granted based
on the declaration in support thereof filed by counsel. ECF No. 299-2.
7
1
Accordingly, the exhibits would not be admissible at trial and are therefore not properly
2
considered on summary judgment. Defendants’ objections are therefore sustained.
3
VI.
4
Legal Standards for Exhaustion
Section 1997(e) (a) of Title 42 of the United States Code provides that “[n]o action shall
5
be brought with respect to prison conditions under section 1983 of this title, ... until such
6
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997(e)(a) (also known as
7
the Prison Litigation Reform Act (“PLRA”)). The PLRA requires that administrative remedies be
8
exhausted prior to filing suit. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002).
9
10
Failure to exhaust is “an affirmative defense the defendant must plead and prove.” Jones
v. Bock, 549 U.S. 199, 204, 216 (2007). To bear this burden:
11
“a defendant must demonstrate that pertinent relief remained
available, whether at unexhausted levels of the grievance process or
through awaiting the results of the relief already granted as a result
of that process. Relevant evidence in so demonstrating would
include statutes, regulations, and other official directives that
explain the scope of the administrative review process;
documentary or testimonial evidence from prison officials who
administer the review process; and information provided to the
prisoner concerning the operation of the grievance procedure in this
case.... With regard to the latter category of evidence, information
provided [to] the prisoner is pertinent because it informs our
determination of whether relief was, as a practical matter,
‘available.’”
12
13
14
15
16
17
18
19
Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005) (citations omitted).
Exhaustion requires that the prisoner complete the administrative review process in
20
accordance with all applicable procedural rules. Woodford v. Ngo, 548 U.S. 81 (2006).
21
California state regulations provide administrative procedures in the form of one informal and
22
three formal levels of review within the California Department of Corrections and Rehabilitation
23
(the “CDCR”) to address plaintiff's claims. See Cal. Code Regs. tit. 15, §§ 3084.1–3084.7.
24
Administrative procedures generally are exhausted once a plaintiff has received a “Director's
25
Level Decision,” or third level review, with respect to his issues or claims. Cal. Code Regs. tit.
26
15, § 3084.5.
27
When the district court concludes that the prisoner has not exhausted administrative
28
remedies on a claim, “the proper remedy is dismissal of the claim without prejudice.” Id. at 1120;
8
1
see also Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (“mixed” complaints may proceed
2
on exhausted claims). Thus, “if a complaint contains both good and bad claims, the court
3
proceeds with the good and leaves the bad.” Jones, 549 U.S. at 221.
4
VII.
Legal Standards for Summary Judgment
5
Summary judgment is appropriate when the moving party “shows that there is no genuine
6
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
7
Civ. P. 56(a).
8
Under summary judgment practice, the moving party “initially bears the burden of
9
proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation,
10
627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
11
The moving party may accomplish this by “citing to particular parts of materials in the record,
12
including depositions, documents, electronically stored information, affidavits or declarations,
13
stipulations (including those made for purposes of the motion only), admission, interrogatory
14
answers, or other materials” or by showing that such materials “do not establish the absence or
15
presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to
16
support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden
17
of proof at trial, “the moving party need only prove that there is an absence of evidence to support
18
the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see
19
also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after adequate
20
time for discovery and upon motion, against a party who fails to make a showing sufficient to
21
establish the existence of an element essential to that party’s case, and on which that party will
22
bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof
23
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
24
immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as
25
whatever is before the district court demonstrates that the standard for entry of summary
26
judgment, . . ., is satisfied.” Id. at 323.
27
If the moving party meets its initial responsibility, the burden then shifts to the opposing
28
party to establish that a genuine issue as to any material fact actually does exist. See Matsushita
9
1
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the
2
existence of this factual dispute, the opposing party may not rely upon the allegations or denials
3
of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or
4
admissible discovery material, in support of its contention that the dispute exists. See Fed. R.
5
Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the
6
fact in contention is material, i.e., a fact that might affect the outcome of the suit under the
7
governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,
8
Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is
9
genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving
10
party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
11
In the endeavor to establish the existence of a factual dispute, the opposing party need not
12
establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual
13
dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at
14
trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce
15
the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”
16
Matsushita, 475 U.S. at 587 (citations omitted).
17
“In evaluating the evidence to determine whether there is a genuine issue of fact,” the
18
court draws “all reasonable inferences supported by the evidence in favor of the non-moving
19
party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is
20
the opposing party’s obligation to produce a factual predicate from which the inference may be
21
drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985),
22
aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing
23
party “must do more than simply show that there is some metaphysical doubt as to the material
24
facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the
25
nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation
26
omitted).
27
VIII.
28
Undisputed Material Facts Pertaining to Exhaustion
In light of the renewed nature of the defendants’ argument on the exhaustion of plaintiff’s
10
1
Eighth Amendment claim, the court will rely on its earlier Findings and Recommendations to the
2
extent they are once again supported by record evidence.
3
On December 3, 2003, plaintiff filed a 602 asking to be seen immediately at dental, and
4
requesting repair of his broken tooth (the “December Grievance”). ECF No. 293-8 at 7. Plaintiff
5
wrote that on December 2, 2003, he broke his tooth while eating. Id. The December Grievance
6
was received on December 10, and returned to plaintiff on December 31, 2003 by staff member
7
Stanfield. Id. The informal response reads that “[w]e have no record that you have formally
8
requested dental care by submitting a 7362. Please do so, and your name will be entered on the
9
dental treatment list. . . .” Id.
10
Plaintiff sought review of the informal staff response at the formal level. ECF No. 293-8.
11
His explanation, signed on January 8, 2004, reads that he is dissatisfied because “my tooth is
12
broken based on dental not calling me in over a year. I have filed numerous requests. . . .” Id.
13
The 602 is not stamped as received by the CSP/Solano Appeals Office until February 20, 2004.
14
Id.; see also ECF No. 293-4 at 5 (Cervantes affidavit). Defendant Cervantes screened out the
15
December Grievance as untimely because, although the request for formal review is dated
16
January 8, 2004, it was not received by the appeals office until February 20, 51 days after
17
completion of the informal level review. ECF Nos. 293-8 at 11 (screen out form); 293-10 at 7
18
(complaint); ECF No. 293-4 at 5 (Cervantes affidavit). In the comment section plaintiff is further
19
directed to start a new 602 if he is still being denied dental care. ECF No. 293-8 at 11. The
20
screening form also reads: “Note: This screening action may not be appealed unless you allege
21
that the above reason is inaccurate. In such case, please return this form to the Appeals
22
Coordinator with the necessary information.” Id.
23
The record currently includes at least two other screening forms which do not, on their
24
face, refer to any particular 602 submitted by the plaintiff. The first is dated December 4, 2003,
25
and is signed by defendant Cervantes (the “December Screening”). ECF Nos. 293-8 at 5 (screen
26
out); 293-4 at 4 (Cervantes affidavit noting that the corresponding 602 is not attached to
27
plaintiff’s complaint). The issue of the appeal is identified as Dental. ECF No. 293-8 at 5. This
28
December Screening rejects an appeal on the grounds that plaintiff had not attempted to resolve
11
1
the problem at the informal level with the Medical Appeals Analyst. Id. In the comment section
2
the plaintiff is instructed to “[f]orward 602 directly to Medical Appeals Analyst for informal level
3
review by dental staff.” Id.
4
The second screening form is dated February 19, 2004, and is signed on behalf of Ms. M.
5
Holiday, Medical Appeals Analyst (the “February Screening”). ECF No. 293-8 at 9. The form
6
reads that a 602 appeal has been received in the Medical Services Appeal Office; however, it
7
cannot be processed because:
8
Informal Response already completed. First Level Appeal Requests
must be processed through the Inmate Appeals Office (not Medical
Appeal Office) initially for assignment of a log number. After the
Inmate Appeals Office assigns a log number, they will then forward
your appeal back to our office for processing.
9
10
11
Id.
12
Since the parties spend the majority of their briefs addressing these additional screen outs
13
at the first formal level of administrative review, there appears to be no dispute that plaintiff did
14
not pursue his administrative remedies at the second or subsequent levels of review. See ECF
15
No. 293-11 at 3 (Affidavit of N. Grannis). Therefore, the only legal question to be resolved with
16
respect to plaintiff’s Eighth Amendment claim is whether his administrative remedies were
17
effectively unavailable at the first formal level and beyond due to improper screen outs and/or
18
misinformation provided to plaintiff. See Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010).
19
With respect to plaintiff’s due process claim, it is undisputed that the procedure for
20
submitting a grievance regarding the improper screening of an inmate’s appeal is the same as the
21
administrative procedure for submitting a grievance about a dental issue. ECF No. 293-4 at ¶ 33.
22
In order to properly exhaust the due process claim, plaintiff was therefore required to submit a
23
CDC 602 form for informal review as well as to complete all three levels of formal review. Id. at
24
¶ 34. Plaintiff did not submit a 602 appeal regarding the improper screening of his dental care
25
grievances at any of the formal levels of review including the third level of director’s review.
26
ECF No. 293-5 at ¶ 8; ECF No. 293-11 at ¶ 6.
27
IX.
28
Plaintiff’s Version of the Evidence of Exhaustion
Plaintiff’s version of the extra screening forms appears to be that he submitted the
12
1
December Grievance to Cervantes, who instructed him in the December Screening to route the
2
602 to the Medical Appeals Analyst. See ECF No. 293-10 at ¶¶ 12-15 (Complaint); ECF No. 295
3
at 13. After plaintiff received the 602 back from the Medical Appeals Analyst (the February
4
Screening), he refiled it with Cervantes, who rejected the appeal as untimely. ECF No. 293-10 at
5
¶ 15; ECF No. 295 at 13. On this basis, plaintiff alleges that he routed his grievances as directed,
6
and in a timely manner. See also ECF No. 295 at 15-16.
7
With respect to the due process claim, plaintiff relies upon a letter he sent to defendant
8
Carey that was received on March 5, 2003. See ECF No. 293-6 at 5-6. The letter generally
9
complains that “Mr. S. Cervantes, the Appeals Coordinator has been doing everything in his
10
power to violate[] my ‘Due Process’ rights.” Id. at 5. It specifically complains about the
11
handling of appeal log number SOL 02-02007, which concerned plaintiff’s classification. Id. at
12
5-6, 8. While the letter refers to “appeals” that plaintiff filed against defendant Cervantes for his
13
mishandling of other grievances, the actual attachments to the letter indicate that plaintiff
14
submitted multiple inmate requests for an interview with defendant Cervantes to address his
15
reliance on untimely appeals when screening plaintiff’s grievances. Compare ECF No. 293-6 at 5
16
with ECF No. 293-6 at 10.
17
X.
Defendants’ Version of the Evidence of Exhaustion
18
It is worth noting that during the life span of this case, the defendants’ explanation for the
19
additional screen outs dated December 4, 2003 and February 19, 2004 has changed. The current
20
position reflected in defendant Cervantes’s affidavit is that the December 4, 2003 screen out for
21
failing to resolve the problem at the informal level of review does not pertain to either the
22
November or the December grievances filed by plaintiff based on its date as well and because “it
23
would be impossible for an appeal to be submitted by the inmate and screened by an Appeals
24
Coordinator on the same day.” ECF No. 293-4 at 4.
25
Defendants further assert that after receiving the response from the first informal level of
26
review on December 31, 2003, plaintiff then submitted his December grievance to the first formal
27
level of review by directing it to the Medical Appeals Analyst on January 8, 2004. In support of
28
this proposition, defendants cite to plaintiff’s amended complaint. See ECF No. 293-10 at 7.
13
1
However, the amended complaint does not clarify what grievance form was submitted to the
2
Medical Appeals Analyst that was ultimately screened out on February 19, 2004. Compare ECF
3
No. 293-10 at 7 (complaint) with ECF No. 293-8 (December 4, 2003 screen out instructing
4
plaintiff to forward the 602 directly to the medical appeals analyst). It was only after receiving
5
the screen out from the Medical Appeals Analyst that plaintiff then directed the December
6
grievance to the CSP-Solano Appeals Office which received it on February 20, 2004. ECF No.
7
293-8 at 7 (containing file stamp date of February 20, 2004 and hand-written notation at the
8
bottom dated the same date indicating that the grievance was screened out as untimely); ECF No.
9
293-8 at 11 (screen out form dated February 20, 2004). Interestingly, this explanation comports
10
with plaintiff’s version of his general attempts to exhaust his administrative remedies, albeit with
11
one exception related to whether the December screening was in response to the December
12
grievance.
13
XI.
Analysis of Exhaustion Issue
14
The court must determine whether plaintiff exhausted his administrative remedies
15
regarding his claims prior to the date he filed the complaint, and if not, whether plaintiff may be
16
excused from the pre-filing exhaustion requirement. See Sapp, 623 F.3d at 823–24. In order to
17
defeat defendants' motion, plaintiff must demonstrate that there are truly genuine and material
18
disputes over whether he actually exhausted available remedies or as to whether he should be
19
excused from the exhaustion requirement.
20
First, the court addresses the exhaustion issue as it relates to plaintiff’s Eighth
21
Amendment claim pertaining to the failure to treat his chipped tooth. Defendant’s undisputed
22
evidence establishes that plaintiff did not exhaust his administrative remedies at the second and
23
third levels of administrative review. Therefore, plaintiff failed to comply with the applicable
24
CDCR rules and procedures in order to properly exhaust this claim. See Woodford v. Ngo, 548
25
U.S. 81 (2006). Accordingly, defendants have established that there is no genuine issue of
26
material fact concerning plaintiff’s failure to exhaust his second and third levels of administrative
27
review.
28
Since defendants have met their initial responsibility of establishing non-exhaustion, the
14
1
burden shifts to plaintiff to come forward with evidence showing that something in his particular
2
case made the existing administrative remedies effectively unavailable to him. See Albino, 747
3
F.3d at 1172. In order to meet this burden, plaintiff challenges the basis for screening out his
4
December appeal. The propriety of the screen out matters because, if prison officials improperly
5
screened out his appeal, he could not properly complete the grievance process and administrative
6
remedies would be effectively unavailable. See Sapp, 623 F.3d at 822–23). To satisfy this
7
exception to exhaustion, the prisoner must show: “(1) that he actually filed a grievance or
8
grievances that, if pursued through all levels of administrative appeals, would have sufficed to
9
exhaust the claim that he seeks to pursue in federal court, and (2) that prison officials screened his
10
grievance or grievances for reasons inconsistent with or unsupported by applicable regulations.”
11
Id. at 823–24.
12
Here plaintiff has met his burden to show that administrative remedies were effectively
13
unavailable. The parties do not dispute that plaintiff’s December Grievance, if pursued through
14
all levels of administrative appeals, would have been sufficient to properly exhaust his Eighth
15
Amendment claim. Therefore, the only remaining question is whether plaintiff has demonstrated
16
that prison officials improperly screened out the grievance. See Sapp, 623 F.3d at 822-23. A
17
reasonable trier of fact could find that defendant Cervantes improperly screened out plaintiff’s
18
appeal as untimely in light of plaintiff’s averment that he followed the instructions given to him
19
in the December and February screen outs of his dental grievance. Indeed, it is the law of the
20
case that Cervantes’ screen out of the closely-related November Grievance was improper for
21
similar reasons. ECF No. 131 at 4-5, 7; ECF No. 162. With this procedural backdrop in mind
22
and in light of the evidence presented, there is a genuine issue of material fact as to whether
23
administrative remedies were effectively unavailable so as to properly exhaust plaintiff’s appeal
24
concerning his broken tooth. Accordingly, the undersigned recommends denying defendants’
25
motion for summary judgment on grounds of non-exhaustion as to plaintiff’s remaining Eighth
26
Amendment claim.
27
28
Turning next to plaintiff’s due process claim, there is no genuine issue of material fact in
dispute concerning plaintiff’s exhaustion of his administrative remedies. Nowhere is there any
15
1
evidence that plaintiff attempted to pursue, much less properly exhaust, his administrative
2
remedies with respect to the improper screening of his dental complaints. The letter to defendant
3
Carey simply does not constitute proper exhaustion of this claim because it bypassed the agency’s
4
procedural rules governing the submission and processing of grievances. See Woodford, 548
5
U.S. at 90 (stating that exhaustion under the PLA requires “compliance with an agency’s
6
deadlines and other critical procedural rules”). Bearing in mind that defendants have the ultimate
7
burden of proof on the defense and viewing the evidence in the light most favorable to plaintiff,
8
the undersigned concludes that defendants are entitled to judgment as a matter of law on the
9
affirmative defense that plaintiff failed to exhaust administrative remedies on his due process
10
claim. Therefore, the undersigned recommends that it be dismissed without prejudice.
11
XII.
Summary Judgment on the Merits
12
A.
13
Deliberate indifference to serious medical needs violates the Eighth Amendment's
Legal Standards Governing Eighth Amendment Claim
14
proscription against cruel and unusual punishment. See Estelle v. Gamble, 429 U.S. 97, 104
15
(1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds,
16
WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc); Jones v.
17
Johnson, 781 F.2d 769, 771 (9th Cir. 1986). A determination of “deliberate indifference”
18
involves an examination of two elements: the seriousness of the prisoner's medical need and the
19
nature of the defendant's response to that need. See McGuckin, 974 F.2d at 1059. A “serious”
20
medical need exists if the failure to treat a prisoner's condition could result in further significant
21
injury or the “unnecessary and wanton infliction of pain.” Id. (citing Estelle v. Gamble, 429 U.S.
22
at 104). Serious medical needs may include dental care needs. See Hunt v. Dental Dep't., 865
23
F.2d 198, 200 (9th Cir. 1989). A prison official is deliberately indifferent if he or she knows that
24
a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take
25
reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
26
B.
27
With respect to the Eighth Amendment claim, the undisputed evidence establishes that
28
Undisputed Materials Facts Concerning Eighth Amendment Claim
plaintiff submitted a grievance for the failure to treat his chipped tooth on December 3, 2003 and
16
1
received dental treatment on September 22, 2004. See ECF Nos. 293-7 (Affidavit of S. Kurk,
2
D.D.S); 293-10 at 20 (grievance form). Plaintiff did not report any pain as a result of the chipped
3
tooth on the grievance form. ECF No. 293-10 at 20. He did indicate that he “did not know at the
4
time that the tooth was broken until [he] brushed.” Id.
5
Defendant Cervantes was the Appeals Coordinator assigned to review plaintiff’s
6
December grievance related to his chipped tooth. ECF No. 293-4 at 5. This grievance was
7
rejected by defendant Cervantes due to untimely filing. Id. As an appeals coordinator, Cervantes
8
was trained to advise the appropriate medical staff if he believed an inmate has a serious medical
9
need. Id. at 6.
10
Defendant Carey did not have any conversations with plaintiff regarding his dental care
11
nor did he become aware of plaintiff’s dental needs while employed as the Warden of CSP-
12
Solano. ECF No. 293-6 at 2. Defendant Carey did not review any of plaintiff’s grievances
13
regarding dental issues. Id. At no time did defendant Carey ever participate in reviewing
14
plaintiff’s December Grievance related to his chipped tooth or direct any subordinate to engage in
15
wrongful conduct in regards to plaintiff’s dental care. Id. at 2-3. Nor did defendant Carey
16
become aware of any wrongful conduct by a subordinate regarding plaintiff’s dental treatment.
17
Id.
18
1.
19
Plaintiff’s testimony at the prior trial indicated that he endured pain and suffering as a
Plaintiff’s Evidence on the Merits
20
result of the failure to receive timely and adequate dental treatment at CSP-Solano. See ECF No.
21
295 at 78.
22
Defendant Cervantes testified under oath at the same trial that he knew when he screened
23
out plaintiff’s November grievance that it would inhibit plaintiff’s ability to receive dental care
24
“to a certain degree.” ECF No. 295 at 79. At no time did defendant Cervantes contact the dental
25
department at the prison to determine whether plaintiff’s complaints required further attention or
26
treatment. ECF No. 295 at 80.
27
2.
28
According to Dr. Kurk, plaintiff’s chipped tooth was not serious enough to cause pain and
Defendants’ Evidence on the Merits
17
1
was therefore properly treated on a routine basis with a routine filling. ECF No. 293-7 at 3. Nor
2
did plaintiff complain of any pain, swelling or an inability to eat during his dental visit on
3
September 22, 2014 as demonstrated by the dental progress notes from that visit. Compare ECF
4
Nos. 293-7 at 3 and 293-8 at 13 with ECF No. 303 at 12 (dental progress note from July 31, 2002
5
noting “pain in my bridgework”).
6
Defendant Cervantes did not believe that plaintiff had a serious medical need when he was
7
reviewing plaintiff’s December 3, 2003 grievance because it did not state that he was
8
experiencing any pain. ECF No. 293-4 at 6.
9
C.
10
Peralta Decision
Defendant Cervantes contends that he should be granted summary judgment in light of the
11
Ninth Circuit Court of Appeal’s recent decision in Peralta v. Dillard, 744 F.3d 1076 (9th Cir.
12
2014). The evidence regarding Cervantes’s screening of plaintiff’s December Grievance does not
13
support his position. ECF No. 313. In Peralta, the Ninth Circuit held that the defendant, an
14
appeals coordinator, could not have been deliberately indifferent to plaintiff’s dental needs based
15
solely on his decision to sign an appeal that he knew had already been reviewed by at least two
16
qualified dentists. While defendant Cervantes is an appeals coordinator like the defendant in
17
Peralta, his screening of plaintiff’s appeal was not predicated upon any prior dental assessment or
18
treatment provided by medical professionals. In fact, the undisputed evidence establishes that the
19
informal response to plaintiff’s December appeal merely indicated that “[w]e have no record that
20
you have formally requested dental care by submitting a 7302. Please do so, and your name will
21
be entered on the dental treatment list. If you have a dental emergency have a C.O. call the dental
22
clinic for an appointment.” See ECF No. 293-10 at 20 (plaintiff’s complaint). That hardly
23
constitutes a professional medical judgment upon which defendant Cervantes could defer in order
24
to escape liability under Peralta. Accordingly, there remains a genuine issue of material fact
25
concerning defendant Cervantes’s deliberate indifference to plaintiff’s serious dental needs
26
concerning his broken tooth. For this reason, the undersigned recommends denying defendant
27
Cervantes’s motion for summary judgment to the extent it is based on Peralta.
28
////
18
1
D.
2
Analysis
1.
Objective Component: Seriousness of Medical Need
3
The evidence is in dispute as to whether plaintiff’s chipped tooth resulted in ongoing pain
4
that would constitute a serious medical need. See McGuckin, 974 F.2d at 1059. While Dr. Kurk
5
opined that plaintiff’s chipped tooth was not serious enough to cause pain, plaintiff himself
6
testified in 2009 that his dental problems caused him pain. Since credibility determinations are
7
inappropriate at the summary judgment stage, there is a genuine issue of material dispute
8
concerning whether plaintiff’s chipped tooth constitutes a serious medical need. Thus, defendants
9
have failed to meet their burden on the objective prong of plaintiff’s Eighth Amendment
10
11
violation.
2.
12
Subjective Component: Deliberate Indifference
a.
Defendant Cervantes
13
Since deliberate indifference may be manifested by the intentional denial, delay or
14
interference with plaintiff’s medical care, the undersigned finds the existence of a material factual
15
dispute concerning defendant Cervantes’ state of mind. See Estelle, 429 U.S. at 104-105;
16
McGuckin, 974 F.2d at 1059. Here, defendant Cervantes’s testimony in 2009 establishes his
17
subjective awareness that screening out plaintiff’s grievance would inhibit plaintiff’s ability to
18
receive dental care. Moreover, plaintiff’s chipped tooth happened on the heels of the failure to
19
treat plaintiff’s broken partial denture for which a jury has already found defendant Cervantes
20
deliberately indifferent to plaintiff’s serious medical needs. In this procedural context, it simply
21
cannot be said that no rational trier of fact could find for plaintiff. Accordingly, the undersigned
22
recommends denying defendant Cervantes’s motion for summary judgment on the Eighth
23
Amendment claim.
24
b.
Defendant Carey
25
Defendant Carey has met his burden of demonstrating the absence of a genuine issue of
26
material fact related to his involvement in the alleged Eighth Amendment violation. Defendant
27
Carey is being sued in his individual capacity. The undisputed record evidence establishes that
28
Carey did not commit any affirmative act, participate in another’s affirmative act, or fail to
19
1
perform an act he was legally required to perform, that caused the alleged constitutional
2
deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff’s vague and
3
conclusory allegations that defendant Carey was responsible for the dental policies at CSP-Solano
4
are not sufficient to create a triable issue of material fact. Additionally, the undersigned finds that
5
no rational trier of fact could find that defendant Carey had a sufficiently culpable state of mind.
6
Plaintiff's complete failure of proof concerning the subjective element of his claim renders all
7
other facts, as well as any disputes concerning those facts, immaterial. For this reason, the
8
undersigned recommends granting defendant Carey’s motion for summary judgment on the
9
Eighth Amendment claim.
10
XIII.
Ancillary Motions
11
A.
12
Plaintiff requests that the court take judicial notice of fourteen separate documents,
Plaintiff’s Request for Judicial Notice
13
including CDCR documents, a newspaper article regarding mail tampering, a copy of plaintiff’s
14
2007 panendoscopy, and selection portions of the trial transcripts in the companion Eighth
15
Amendment claim in the instant case. ECF No. 298. By separate motion, plaintiff also requests
16
that the court take judicial notice of a first level appeal response involving a different inmate at
17
CSP-Solano and a declaration from yet another inmate concerning the processing of his inmate
18
appeals at an unknown prison. ECF No. 302.
19
The only undisputed portion of plaintiff’s request concerns the trial transcripts from the
20
companion Eighth Amendment claim in the present case. Plaintiff fails to establish that the
21
remainder of the requested items are undisputed, as required under Federal Rule of Evidence 201.
22
Moreover, as the court has explained in discussion of defendants’ objections to plaintiff’s
23
evidence, plaintiff fails to establish the relevance of any of these records to the administrative
24
exhaustion issue. The November 25, 2013 request (ECF No. 298) is accordingly granted as to the
25
trial transcripts only and denied as to the remaining items. Plaintiff’s additional request filed on
26
December 10, 2013 (ECF No. 302) is denied.
27
B.
28
Plaintiff seeks an expert witness “to explain why the dental partial broke, why other teeth
Plaintiff’s Request for an Expert Witness
20
1
broke after the partial had broken… if plaintiff had a serious medical need to [sic] dental care,
2
and how his chronic gastritis was created by the broken dental partials and his inability to eat
3
properly.” ECF No. 297 at 1.
4
Defendants oppose the appointment of an expert in this case, asserting that plaintiff has
5
not established the need for an expert because the cause of, or damages resulting from, plaintiff’s
6
broken partial denture is no longer an issue in this case. ECF No. 301 at 1.
7
In response, plaintiff argues that “absent expert testimony, the court cannot determine
8
whether there is evidence that defendants’ treatment of plaintiff fell so far below the standard of
9
care that a jury could find that defendants were subjectively aware of the risk of harm to
10
plaintiff.” ECF No. 304 at 2.
11
A district court may appoint an expert, though the failure to do so is not an abuse of
12
discretion when the case does not involve complex scientific evidence or issues. See, e.g.,
13
Walker v. Am. Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999).
14
Plaintiff’s conclusory statements aside, plaintiff fails to establish that an expert is necessary in
15
this case. See also ECF No. 261 at 4 (Court of Appeals finds that there were no complex or
16
scientific issues present in the case, and an expert was not necessary to explain to the jury the
17
extent of plaintiff’s pain and suffering). Plaintiff’s request for an expert witness is accordingly
18
denied.
19
C.
20
On May 5, 2014, plaintiff filed a “motion to compel” the payment to him of the 2009 jury
Plaintiff’s Motion to Enforce Judgment
21
verdict in the companion Eighth Amendment claim in the instant case. ECF No. 307. The
22
cursory one page motion merely indicates that plaintiff filed “request forms to the Attorney
23
General[’s] Office several months ago without any type of reply.” Id. at 1.
24
In their opposition, defendants appropriately construe plaintiff’s motion as a motion to
25
enforce judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. ECF No. 308.
26
Defendants also note that a final judgment on fewer than all of the claims or parties can only be
27
entered if the court determines that there is no just reason for delay. Id. (citing Fed. R. Civ. P.
28
54(b)).
21
1
In his response, plaintiff alleges that after his claim for injunctive relief was dismissed, he
2
was transferred back to CSP-Solano where he was retaliated against which caused him to file a
3
separate civil rights complaint. ECF No. 309. It is unclear how this is responsive to defendants’
4
opposition or relevant to the Rule 54(b) inquiry.
5
Rule 54(b) provides that in actions involving multiple parties or more than one claim for
6
relief, “the court may direct entry of a final judgment as to one or more, but fewer than all, claims
7
or parties only if the court expressly determines that there is no just reason for delay.” Fed. R.
8
Civ. P. 54(b). “It is left to the sound judicial discretion of the district court to determine the
9
‘appropriate time’ when each final decision in a multiple claims action is ready for appeal.”
10
Curtiss–Wright Corp. Corp. v. General Elec. Co., 446 U.S. 1, 8, (1980); Sears, Roebuck & Co. v.
11
Mackey, 351 U.S. 427, 437 (1956); Wood v. GCC Bend, LLC, 422 F.3d 873, 878 (9th Cir. 2005).
12
When determining whether there is a “just reason for delay” a court must “take into account
13
judicial administrative interests as well as the equities involved” and “may consider factors such
14
as ‘whether the claims under review were separable from the other remaining to be adjudicated.’’
15
Curtiss–Wright, 446 U.S. at 8. The district court must preserve “the historic federal policy
16
against piecemeal appeals.” Id.; Sears, Roebuck, 351 U.S. at 438; Wood, 422 F.3d at 878–79.
17
To the extent it is not already clear from the lengthy procedural history of this case, the
18
claims in plaintiff’s complaint have already proceeded in a piecemeal fashion both in this court
19
and on appeal. A jury awarded plaintiff $1500.00 in damages for the Eighth Amendment
20
violation concerning plaintiff’s broken partial denture. Judgment was entered on that claim on
21
February 13, 2009 and the Ninth Circuit affirmed the judgment on July 9, 2012. See ECF Nos.
22
232, 261. The claim(s) remaining in the case, assuming the district court’s adoption of these
23
Findings and Recommendations regarding the summary judgment motion, are not likely to be
24
tried promptly. Accordingly, continued delay in satisfaction of the 2009 judgment does not serve
25
the interests of justice or of sound judicial administration. The undersigned accordingly
26
recommends that plaintiff’s motion to compel, construed as a motion to enforce the 2009
27
judgment, be granted.
28
////
22
1
Accordingly, IT IS HEREBY ORDERED that:
2
1. Plaintiff’s request for judicial notice filed on November 25, 2013 (ECF No. 298) is
3
granted in part and denied in part as indicated herein;
4
5
2. Plaintiff’s request for judicial notice filed on December 10, 2013 (ECF No. 302) is
denied; and,
6
3. Plaintiff’s request for an expert witness (ECF No. 297) is denied.
7
IT IS FURTHER RECOMMENDED that:
8
1. Plaintiff’s motion to compel (ECF No. 307), construed as a motion to enforce the 2009
9
judgment, be granted;
10
2. Within thirty days from the adoption of the instant Findings and Recommendations by
11
the District Judge, Defendant Cervantes is directed to satisfy the 2009 judgment and to file a
12
notice of compliance with the court;
13
14
3. Defendants’ summary judgment motion (ECF No.293) be granted in part and denied in
part as follows:
15
a. Granted as to (1) plaintiff’s due process claim, on grounds of non-exhaustion;
16
and (2) plaintiff’s Eighth Amendment claim against defendant Carey; and
17
b. Denied as to plaintiff’s Eighth Amendment claim against defendant Cervantes.
18
These findings and recommendations are submitted to the United States District Judge
19
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
20
after being served with these findings and recommendations, any party may file written
21
objections with the court and serve a copy on all parties. Such a document should be captioned
22
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
23
objections shall be served and filed within fourteen days after service of the objections. DUE TO
24
EXIGENCIES IN THE COURT’S CALENDAR, NO EXTENSIONS OF TIME WILL BE
25
GRANTED. The parties are advised that failure to file objections within the specified time may
26
////
27
////
28
////
23
1
waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
2
1991).
3
DATED: August 18, 2014
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
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?