Williams v. Daszko et al

Filing 37

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/05/16 ordering defendant Mathis' motion to strike plaintiff's surreply 36 is denied. Defendant Daszko's request to submit further briefing in resp onse to plaintiff's surreply 35 at 4 is denied. Also, RECOMMENDING that the motion for summary judgment filed by defendant Mathis 19 be denied. The motion for summary judgment filed by defendant Daszko 21 be denied. This action should proceed on plaintiff's Eighth Amendment claims against defendants Mathis and Daszko. Motions 19 and 21 referred to Judge Kimberly J. Mueller. 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

HILLIARD WILLIAMS,

12
13
14

No. 2:14-cv-1248 KJM AC P

Plaintiff,
v.

ORDER and

JAROM A. DASZKO, et al.,

15

FINDINGS AND RECOMMENDATIONS

Defendants.

16
17
18

I.

Introduction

Plaintiff is a state prisoner who proceeds pro se and in forma pauperis in this civil rights

19

action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff’s original verified

20

complaint filed May 21, 2014. See ECF No. 1. Upon screening the complaint pursuant to 28

21

U.S.C. §1915A(a), this court found that it states Eighth Amendment claims against defendants

22

Jarom A. Daszko, M.D. and David Mathis, M.D., for deliberate indifference to plaintiff’s serious

23

medical needs. See ECF No. 8 at 1-2. Defendants answered the complaint. ECF Nos. 15, 17.

24

Discovery proceeded through April 30, 2015. ECF No. 18. Thereafter, defendants, who are

25

represented by separate counsel, filed separate motions for summary judgment premised on

26

plaintiff’s alleged failure to exhaust his administrative remedies before commencing this action.

27

ECF Nos. 19, 21. Plaintiff filed oppositions to each motion, ECF Nos. 24, 27; defendants filed

28

replies, ECF Nos. 26, 28. Thereafter, plaintiff filed a further opposition (surreply) to defendant

1

Mathis’ motion for summary judgment (also relevant to defendant Daszko’s motion for summary

2

judgment), ECF No. 33, which defendants seek to strike and/or respond to with additional

3

briefing.

4

These matters are referred to the undersigned United States Magistrate Judge pursuant to

5

28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). For the reasons that follow, this court

6

recommends that defendants’ motions for summary judgment be denied.

7

II.

8

Both defendants object to plaintiff’s surreply, ECF No. 33, on the ground that it was filed

9

Plaintiff’s Surreply

without court authorization, see ECF Nos. 35-6. Defendant Mathis moves to strike the filing,

10

ECF No. 36, and defendant Daszko requests an opportunity to respond if the court chooses to rely

11

on it, ECF No. 35 at 4.

12

Neither the Local Rules nor the Federal Rules authorize, as a matter of right, the filing of a

13

surreply. Nevertheless, a district court may consider the substance of a surreply “where a valid

14

reason for such additional briefing exists.” Hill v. England, 2005 WL 3031136, at *1, 2005 U.S.

15

Dist. LEXIS 29357 (E.D. Cal. Nov. 8, 2005) (Case No. 1:05-cv-0869 REC TAG). In the instant

16

case, the court finds good cause to consider the substance of plaintiff’s surreply. Its filing is

17

reasonable in light of plaintiff’s pro se status and the staggered filing of defendants’ separate

18

motions for summary judgment. The filing contains a more thorough opposition to defendant

19

Mathis’ motion for summary judgment than that previously filed by plaintiff (for example, it

20

contains his statement of undisputed and disputed facts), and it includes new information

21

concerning plaintiff’s relevant administrative appeal.

22

In light of the recent decision of the United States Court of Appeals for the Ninth Circuit,

23

in Reyes v. Smith, __ F. 3d __, 2016 WL 142601, 2016 U.S. App. LEXIS 433 (9th Cir. Jan. 12,

24

2016) (Case No. 13-17119), further responsive briefing by defendants would not be helpful.

25

Accordingly, this court denies defendant Mathis’ motion to strike, ECF No. 36, and

26

defendant Daszko’s request to submit further briefing, ECF No. 35 at 4.

27

////

28

////
2

1
2

III.

Allegations of Plaintiff’s Verified Complaint and Declarations

Plaintiff Hilliard Williams has at all relevant times been an inmate at the California

3

Medical Facility (CMF) in Vacaville. Pursuant to his verified complaint, plaintiff alleges that in

4

the early morning hours of September 7, 2012, while he was sleeping, another inmate in his

5

dormitory threw boiling liquid onto plaintiff’s face, upper body, arms and hands, resulting in

6

second and third degree burns. Compl., ECF No. 1 at ¶ 17. Plaintiff was immediately treated at

7

CMF’s B-1 Clinic’s Emergency Room and then transferred to San Joaquin General Hospital. Id.

8

at ¶¶ 18-19. At both locations, plaintiff was administered intravenous fluids including morphine.

9

Id. at ¶ 18. Plaintiff was returned to CMF later the same day, but then taken to the U.C. Davis

10

Burn Center for outpatient treatment. Id. at ¶ 20. Plaintiff was not provided additional pain

11

medication as an outpatient at the Burn Center, and was returned to CMF later than day. Id.

12

Plaintiff alleges that upon his return to CMF he was “suffering from extreme and acute

13

pain . . . secondary to being cooked alive, only a few short hours earlier.” Id. at ¶ 21. However,

14

he was denied further pain medication for the following reason, id.:

15
16
17
18
19

Plaintiff was denied any additional pain medication by the
defendants based upon a policy that only a patient’s Primary Care
Physician (PCP) could prescribed pain medication or change the
dose of pain medication that any given individual was receiving.
And at that time, the plaintiff’s PCP was unfortunately unavailable
due to his being on a two or three week vacation.
Plaintiff alleges that he repeatedly notified the prison’s B-1 Clinic that his pain was

20

becoming worse. However, “he was repeatedly turned away by the defendants and told that he

21

would have to wait for his own [PCP] to return from vacation because no one other than his own

22

PCP could change his pain medications pursuant to some in-house policy.” Id. at ¶ 23.

23

Plaintiff alleges that he developed a fever and felt ill on September 11, 2012, and sought

24

treatment at the B-1 Clinic’s Emergency Room. Initially he was “once again coldly rebuffed and

25

cast aside and again told that he had to wait until his own [PCP] returned from vacation in a week

26

or two before he could obtain additional treatment[.]” Id. at ¶ 24. After returning to his housing

27

unit, plaintiff became more ill and fell while standing in the medication line. He was then

28

admitted to the B-1 Clinic’s Emergency Room. Id. at ¶ 25-6. It was discovered that plaintiff had
3

1

a “dangerously high fever,” and the burn on his right arm was infected. Id. at ¶ 27. Plaintiff was

2

then transferred and admitted to the U.C. Davis Burn Center. Id.

3

As an admitted patient at the Burn Center, plaintiff was placed on intravenous antibiotics

4

and “finally given additional and overdue pain medication.” Id. at ¶ 28. Plaintiff remained at

5

U.C. Davis for one week, with treatment that controlled his pain and reduced his infection. Id. at

6

¶ 29.

7

Plaintiff alleges that, upon his return to CMF, he was again denied pain medication on the

8

ground that his PCP was still on vacation. Id. at ¶ 30. At each of his bandage changes at the B-1

9

Clinic, on at least September 19, September 20, and September 21, 2012, plaintiff’s requests for

10

pain medication were denied. Id. at ¶¶ 31-3. By September 21, plaintiff had asked four times to

11

see the psychiatrist on duty, because “plaintiff was still not sleeping but was also now suffering

12

from severe ‘flash-backs’ of the attack as well as nightmares,” but his requests were denied. Id.

13

at ¶¶ 34-5.

14

On September 24, 2012, when plaintiff went to the clinic to have his bandages changed,

15

he noticed that his PCP, Dr. John Wieland, had returned from vacation and was working in the B-

16

1 Clinic’s Emergency Room. Id. at ¶ 36. Plaintiff states that “at that point, [he] was able to speak

17

with [Dr. Wieland] who then immediately took over plaintiff’s medical care and treatment and

18

immediately provided plaintiff some much needed pain relief by increasing his prescribed pain

19

medication to a level that provided relief[.]” Id. at ¶ 37.

20

The complaint alleges that defendants Daszko and Mathis were the “Primary Care

21

Physician[s] who treated plaintiff at CMF in the institution’s B-1 Emergency Room and while

22

plaintiff[’s] own Primary Care Physician was away on vacation during the relevant time period of

23

this suit.” (Id. at ¶¶ 5, 9).

24

Plaintiff’s relevant administrative health care appeal, and the response granting the appeal

25

at the first level, are included as exhibits to the verified complaint. See ECF No. 1 at 21-7; see

26

also Decl. of W. Harris, CMF Health Care Appeals Coordinator, ECF No. 19-5 at ¶¶ 9-11, and

27

Exs. B-D. The appeal, Health Care Appeal Log No. CMF HC 12037206, was signed by plaintiff

28

on September 20, 2012, and file-stamped “received” on September 25, 2012. It is entitled
4

1

“DELIBERATE INDIFFERENCE TO THE PAIN AND SUFFERING OF AN INMATE.” ECF

2

No. 1 at 24. In Section A, plaintiff’s described his grievance “issue” as follows, id. at 24, 26

3

(with minor edits):

4

16

On or about 9/7/2012 and prior thereto, I was a victim of an
unprovoked attack by another inmate and sustained second and
third degree burns o[n] my body, face, neck and right arm.
Although I have repeatedly asked for pain meds to address the
severe pain that I am suffering, I have repeatedly been told that I
need to see my own PCP [Primary Care Physician] for any pain
medication. Presently, my assigned PCP is on vacation and I am
told that I must wait [an] additional two (2) weeks before my health
issues can be addressed. This is unacceptable that any human being
can be allowed to suffer that pain that I am suffering while the so
called CMF medical department turns a deaf ear and a blind eye to
my pain and suffering. Since being severely burned, I have been
denied proper medical care resulting in my burns becoming infected
resulting in my having to be admitted to an outside hospital for
treatment, something that should not have taken place. This after
being refused any treatment at all by one of the CDCR’s contracting
outside hospitals because I had an appointment scheduled at another
hospital at a later time. This is completely unacceptable! Allowing
any fellow human being to wallow in the doldrums of a hell of
unrelenting, agony (sic) of pain and anguish simply because no one
cares, is not a penalty that was imposed upon me by any court of
this State. Nor does such punishment comport with society’s
definition of humane punishment nor does it advance any type of
legal, governmental policy, objective, or purpose, other than that of
torture.

17

In Section B of the appeal, plaintiff sought the following relief, id. at 24, 26:

18

(1) Provide me with the necessary and proper care and pain
medication so that I am no longer needlessly suffering the severe
pain from the burns that I received on or about 9/7/2012; (2) Take
no type of retaliation against me for filing of this CDCR 602-HC
Appeal, either directly or by proxy; (3) Provide me with immediate
and adequate pain management for my severe injuries.

5
6
7
8
9
10
11
12
13
14
15

19
20
21
22

The appeal was accepted at the First Level Review on September 29, 2012, and assigned

23

to plaintiff’s PCP, Dr. Wieland. See ECF No. 1 at 24. Dr. Wieland interviewed plaintiff on

24

October 16, 2012, and granted his appeal on the same date. Id.

25

A formal response was also prepared on October 16, 2012, by Dr. F. Rading, CCHCS

26

Chief Physician and Surgeon for “Outpatient Services.” Id. at 22-3. This response described

27

plaintiff’s appeal as follows: “Issue Type: Disagreement with Treatment (MD). Action

28

Requested: (1) Provide proper care. (2) Provide pain medication. (3) No retaliation.” Id. at 22
5

1

(with minor edits). After noting plaintiff’s interview with Dr. Wieland on the same date, the

2

formal response and decision provided in full, id. at 22-3:

3

Response:

4

The First Level Appeal, received September 25, 2012 indicated you
sustained burns to your face, neck, arm and upper chest by another
inmate. You were sent initially to Stockton, but then were sent to
the UC Davis burn center since Stockton hospital is not a burn
center. You were seen by their team and did have follow up
dressing changes. Your skin wounds, while still sensitive, are
healing.

5
6
7
8

Your pain medications were not changed until several days later
when Dr. Wieland saw you and temporarily increased your
morphine.

9
10

At the First Level of Review this appeal is GRANTED. You did
get medical care, and Dr. Wieland eventually did increase your pain
medication. Dr. Wieland explained that there is no intent or reason
for retaliation.

11
12
13

Your appeal with attachment(s), Unit Health Record (UHR), and all
pertinent departmental policies and procedures was reviewed.

14

Appeal Decision:

15

Based upon the aforementioned information, your appeal is
GRANTED.

16
17
18

The appeal response and decision were returned to plaintiff on October 26, 2012. Id. at
24.

19

In December 2012, plaintiff sought to resubmit his appeal for further review for the

20

purpose of exhausting his administrative remedies. However, the matter was cancelled in January

21

2013 because the appeal had already been granted. See ECF No. 24 at 13-8.

22

Plaintiff has also submitted two verified declarations in support of his opposition to

23

defendants’ motions for summary judgment. See ECF No. 27-1 at 1-3; ECF No. 33 at 24-30.

24

Plaintiff alleges therein that he did not know defendants’ names until so informed by Dr.

25

Wieland. Plaintiff states that during his interview on October 16, 2012, Dr. Wieland “looked up

26

the medical records to see who had been the doctors that refused to provide me with adequate

27

pain medication,” and identified “these doctors . . . as the two defendants in this case, Drs.

28

Daszko and Mathis.” Pl. Decl., ECF No. 33 at 28-9, ¶ 22; see also id. at ¶¶ 21, 23.
6

1

In addition, plaintiff states that his appeal, which is typed, was prepared by inmate Birrell,

2

“Special Representative” with CMF’s Men’s Advisory Council (MAC). See ECF No. 33 at 9, 13.

3

Plaintiff states that he requested the assistance of Birrell in preparing his appeal because

4

plaintiff’s right arm was “so burned and non-usable.” Pl. Decl., ECF No. 33 at 27-8, ¶ 17.

5

Plaintiff also states that when he met with Birrell, “due to my lack of sleep, and mental confusion

6

because of the severe pain that I was being forced to suffer, I had trouble remembering the facts

7

of everything that had taken place including all of the medical staff that had either treated me, or

8

refused me medical care and treatment due [to] their in-house policy.” Id. at 28, ¶ 19.

9

Nevertheless, plaintiff gave Birrell “as much of the information as I could remember which was

10

enough since my appeal was accepted and processed by the Appeals Coordinator.” Id. at 29, ¶

11

24.1

12

Plaintiff has included the putative verified declaration of inmate Birrell. See n.3, infra.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

In his opposition to the motion for summary judgment filed by defendant Mathis, plaintiff
further explains, ECF No. 33 at 9, 13:
On September 20, 2012, Plaintiff through the MAC Special
Representative, submitted the inmate appeal related to the
deliberate indifference involved in this case. At that particular
time, this plaintiff was so “screwed-up” due to the unrelenting pain,
discomfort and lack of sleep that these symptoms caused him, that
it took over an hour for the MAC Representative to obtain enough
information so as to be able to actually write out the appeal in such
a manner that it would in fact be accepted by the appeals
coordinator at that time, Ms. A. Looney. . . . Had the plaintiff
known the actual names of defendants Mathis and Daszko at the
time that the appeal was written with the assistance of the MAC
Special Representative, Birrell, these names would have been
placed in the appeal.
Plaintiff . . . was so seriously damaged from being attacked and
cooked alive that he was unable to write his own appeal and had to
call upon the Men’s Advisory Council to send the “Special
Representative” to plaintiff’s dormitory to write the appeal for him.
And even when Inmate Birrell arrived at Plaintiff’s house and
attempted to obtain the necessary information for the appeal from
Plaintiff, the pain and lack of sleep that this Plaintiff was suffering
from caused the encounter to take over an hour before Inmate
Birrell was finally able to obtain enough information to be able to
write the appeal and then help plaintiff submit the appeal for
processing.
7

1

Birrell avers that he assisted plaintiff while serving as the “Special Representative” for the MAC,

2

whose primary function was to assist in the preparation of appeals for CMF inmates “who, for

3

whatever reason(s) were unable to write or process their own[.]” Birrell Decl., ECF No. 33 at 31-

4

2, ¶¶ 2-3. Birrell has assisted other inmates with administrative appeals for the last 35 years. Id.

5

at ¶ 3. Birrell avers in pertinent part, id. at ¶¶ 5-10, 14 (with minor edits):

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

[O]n September 15, 2012, I was instructed by the MAC Chairman
to go to I-1 Housing Unit and see an Inmate Hilliard Williams who
had been the victim of an unprovoked attack and who wanted to file
an administrative appeal concerning the lack of medical care or
treatment that he had been receiving since being attacked.
On September 16, 2012, I . . . met with the plaintiff. . . . I observed
that [plaintiff’s] right arm, face and most of his upper body was
burned, severely, and he appeared to be in extreme discomfort and
pain while I was with him, drifting in and out of sleep or semiconsciousness. Williams had great difficulty maintaining his focus
and providing the necessary information that I required in order to
the write the 602 Inmate Appeal for [him].
[A]fter approximately one hour, I was able to obtain all the
information that Williams had at that time concerning his issues
appearing in his 602-HC. Unfortunately Williams could not
remember or provide the names of the medical staff involved in the
denial of his medical treatment. . . . [B]ased upon what I was finally
able to obtain from Williams regarding the issue of lack of adequate
pain medications, I was at last able to write his appeal which I then
did, had Williams sign, date and then I sent the appeal to the
appeals coordinator for processing on Sept. 20, 2012.
… [T]he appeals coordinator accepted Inmate Williams’ appeal,
screened it and then accepted it as a proper and adequate appeal
providing the necessary notice to the institution as well as the
medical department[.]

21

IV. Undisputed Facts

22

The following facts concerning the submission and exhaustion of plaintiff’s relevant

23
24

administrative appeal are undisputed by the parties:
1. Plaintiff Hilliard Williams was, at all times relevant to this action, a state prisoner

25

under the authority of the California Department of Corrections and Rehabilitation (“CDCR”),

26

incarcerated at the California Medical Facility (“CMF”).

27

2. The only health care appeal relevant to plaintiff’s medical treatment arising from the

28

attack on him by another inmate on September 7, 2012, was Health Care Appeal Log No. CMF
8

1

HC 12037206.2

2
3

3. This appeal was signed by plaintiff on September 20, 2012, and file-stamped received
on September 25, 2012.

4

4. This appeal was granted in full on First Level Review on October 16, 2012.

5

5. This appeal does not name either defendant.

6

V.

7

Legal Standards
A.

Legal Standards for Summary Judgment

8

Summary judgment is appropriate when the moving party “shows that there is no genuine

9

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

10

Civ. P. 56(a). Under summary judgment practice, the moving party “initially bears the burden of

11

proving the absence of a genuine issue of material fact.” Nursing Home Pension Fund, Local 144

12

v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010)

13

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish

14

this by “citing to particular parts of materials in the record, including depositions, documents,

15

electronically stored information, affidavits or declarations, stipulations (including those made for

16

purposes of the motion only), admission, interrogatory answers, or other materials” or by showing

17
2

18
19
20
21
22
23
24
25
26
27
28

See Declaration of W. Harris, CMF Health Care Appeals Coordinator, and exhibits thereto,
ECF No. 19-5 through 19-7; and Declaration of D. Davis, CMF Custody Appeals Coordinator,
ECF No. 19-4. However, it appears that plaintiff did not exhaust his appeal alleging that prison
officials failed to protect him from the September 7, 2012 assault. As stated by D. Davis, ECF
No. 19-4 at ¶¶ 9-10:
The only [custody appeal] that relates to the attack on plaintiff by
another inmate that occurred on or about September 7, 2012 is
Appeal CMF-M-12-02361 (although it does not relate to plaintiff’s
medical treatment; rather, the failure to prevent the attack from
happening in the first place). A true and correct copy of this appeal
is attached as Exhibit “B.”
Appeal CMF-M-12-02361 was received by the Appeals Office on
or about September 17, 2010. The first level of review was
bypassed, and it was granted in part at the second level of review on
or about October 29, 2012. Although plaintiff was instructed that
in order to exhaust his administrative remedies, he would have to
submit the appeal to the third level, Plaintiff did not do so. A true
and correct copy of the institution’s second level response to
Appeal CMF-M-12-02361 is attached as Exhibit “C.”
9

1

that such materials “do not establish the absence or presence of a genuine dispute, or that the

2

adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56

3

(c)(1)(A), (B).

4

When the non-moving party bears the burden of proof at trial, “the moving party need

5

only prove that there is an absence of evidence to support the nonmoving party’s case.” Oracle

6

Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

7

Indeed, summary judgment should be entered, after adequate time for discovery and upon motion,

8

against a party who fails to make a showing sufficient to establish the existence of an element

9

essential to that party’s case, and on which that party will bear the burden of proof at trial. See

10

Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the

11

nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a

12

circumstance, summary judgment should be granted, “so long as whatever is before the district

13

court demonstrates that the standard for entry of summary judgment ... is satisfied.” Id. at 323.

14

If the moving party meets its initial responsibility, the burden then shifts to the opposing

15

party to establish that a genuine issue as to any material fact actually does exist. See Matsushita

16

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

17

existence of this factual dispute, the opposing party may not rely upon the allegations or denials

18

of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or

19

admissible discovery material, in support of its contention that the dispute exists. See Fed. R.

20

Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. Moreover, “[a] [p]laintiff’s verified complaint

21

may be considered as an affidavit in opposition to summary judgment if it is based on personal

22

knowledge and sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122,

23

1132 n.14 (9th Cir. 2000) (en banc).3

24
3

25
26
27
28

In addition, in considering a dispositive motion or opposition thereto in the case of a pro se
plaintiff, the court does not require formal authentication of the exhibits attached to plaintiff’s
verified complaint or opposition. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)
(evidence which could be made admissible at trial may be considered on summary judgment);
see also Aholelei v. Hawaii Dept. of Public Safety, 220 Fed. Appx. 670, 672 (9th Cir. 2007)
(district court abused its discretion in not considering plaintiff’s evidence at summary judgment,
“which consisted primarily of litigation and administrative documents involving another prison
10

1

The opposing party must demonstrate that the fact in contention is material, i.e., a fact that

2

might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby,

3

Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assoc., 809

4

F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a

5

reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers,

6

Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

7

In the endeavor to establish the existence of a factual dispute, the opposing party need not

8

establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

9

dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

10

trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce

11

the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’”

12

Matsushita, 475 U .S. at 587 (citations omitted).

13

In evaluating the evidence to determine whether there is a genuine issue of fact,” the court

14

draws “all reasonable inferences supported by the evidence in favor of the non-moving party.”

15

Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam).

16

It is the opposing party’s obligation to produce a factual predicate from which the inference may

17

be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985),

18

aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

19

party “must do more than simply show that there is some metaphysical doubt as to the material

20

facts. … Where the record taken as a whole could not lead a rational trier of fact to find for the

21

nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation

22

omitted).

23

In applying these rules, district courts must “construe liberally motion papers and

24

pleadings filed by pro se inmates and … avoid applying summary judgment rules strictly.”

25

Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). However, “[if] a party fails to properly

26
27
28

and letters from other prisoners” which evidence could be made admissible at trial through the
other inmates’ testimony at trial); see Ninth Circuit Rule 36-3 (unpublished Ninth Circuit
decisions may be cited not for precedent but to indicate how the Court of Appeals may apply
existing precedent).
11

1

support an assertion of fact or fails to properly address another party’s assertion of fact, as

2

required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion

3

. . . .” Fed. R. Civ. P. 56(e)(2).

4

B.

Legal Standards for Exhausting Prisoner Administrative Remedies

5

The Prison Litigation Reform Act (PLRA) requires that prisoners exhaust “such

6

administrative remedies as are available” before commencing a suit challenging prison

7

conditions. 42 U.S.C. § 1997e(a). Regardless of the relief sought, a prisoner must pursue an

8

appeal through all levels of a prison’s grievance process as long as some remedy remains

9

available. “The obligation to exhaust ‘available’ remedies persists as long as some remedy

10

remains ‘available.’ Once that is no longer the case, then there are no ‘remedies . . . available,’

11

and the prisoner need not further pursue the grievance.” Brown v. Valoff, 422 F.3d 926, 935 (9th

12

Cir. 2005) (original emphasis) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). Hence, “[a]n

13

inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in

14

order to exhaust his administrative remedies.” Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir.

15

2010).

16

The PLRA also requires that prisoners, when grieving their appeal, adhere to CDCR’s

17

“critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 91 (2006). “The level of detail

18

necessary in a grievance to comply with the grievance procedures will vary from system to

19

system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the

20

boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).

21

In California, CDCR regulations permit a prisoner to grieve or “appeal” any action or

22

inaction by prison staff that has “a material adverse effect upon his or her health, safety, or

23

welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). A prisoner commences a health-related appeal by

24

submitting a CDCR Form 602-HC (“Patient/Inmate Health Care Appeal”) that “describe[s] the

25

specific issue under appeal and the relief requested.” Id. § 3084.2(a). The form limits the

26

prisoner to “one issue or related set of issues” and “to the space provided.” Id. § 3084.2(a)(1),

27

(2). The form directs that the prisoner “shall list all staff member(s) involved and describe their

28

involvement in the issue.” Id. § 3084.2(a)(3). This instruction further provides, id.:
12

1
2
3
4

To assist in the identification of staff members, the inmate or
parolee shall include the staff member’s last name, first initial, title
or position, if known, and the dates of the staff member’s
involvement in the issue under appeal. If the inmate or parolee
does not have the requested identifying information about the staff
member(s), he or she shall provide any other available information
that would assist the appeals coordinator in making a reasonable
attempt to identify the staff member(s) in question.

5
6

See also, the California Correctional Health Care Services (CCHCS) Manual, Inmate Medical

7

Services Policies & Procedures, Vol. 1 (Governance and Administration), Chap. 8 (Health Care

8

Appeal Tracking Program) (applying these regulations to Health Care appeals), at Section II-A.

9

The Ninth Circuit Court of Appeals recently held that if a prisoner fails to comply with a

10

prison’s procedural requirements in pursuing his appeal but prison officials address the merits of

11

the appeal nevertheless, then the prisoner is deemed to have exhausted his available

12

administrative remedies. See Reyes v. Smith, __ F. 3d __, 2016 WL 142601, 2016 U.S. App.

13

LEXIS 433 (9th Cir. Jan. 12, 2016) (Case No. 13-17119). As stated by the Court of Appeals, “if

14

prison officials ignore the procedural problem and render a decision on the merits of the

15

grievance at each available step of the administrative process,” then the prisoner has exhausted

16

“such administrative remedies as are available” under the PLRA. Reyes, 2016 WL 142601, at *3,

17

2016 U.S. App. LEXIS 433, at *9.

18

The Ninth Circuit has laid out the analytical approach to be taken by district courts in

19

assessing the merits of a motion for summary judgment based on the alleged failure of a prisoner

20

to exhaust his administrative remedies. As set forth in Albino v. Baca, 747 F.3d 1162, 1172 (9th

21

Cir. 2014), cert. denied sub nom. Scott v. Albino, 135 S. Ct. 403 (2014) (citation and internal

22

quotations omitted):

23
24
25
26
27

[T]he defendant’s burden is to prove that there was an available
administrative remedy, and that the prisoner did not exhaust that
available remedy. . . . Once the defendant has carried that burden,
the prisoner has the burden of production. That is, the burden shifts
to the prisoner to come forward with evidence showing that there is
something in his particular case that made the existing and
generally available administrative remedies effectively unavailable
to him. However, . . . the ultimate burden of proof remains with the
defendant.

28
13

1

If a court concludes that a prisoner failed to exhaust his available administrative remedies, the

2

proper remedy is dismissal without prejudice. See Jones v. Bock, 549 U.S. 199, 223-24 (2010);

3

Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir. 2005).

4

VI.

5

Defendants contend that this action should be dismissed because plaintiff’s appeal failed

Analysis

6

to name either defendant and therefore failed to comply with the CDCR regulation directing

7

prisoners to name the staff members whose conduct is challenged, or “provide any other available

8

information that would assist the appeals coordinator in making a reasonable attempt to identify

9

the staff member(s) in question.” Cal. Code Regs. tit. 15, § 3084.2(a)(3). Defendants rely on

10

district court cases, decided before Reyes, supra, which concluded that the failure of a prisoner to

11

name a prison official in the underlying appeal rendered the appeal unexhausted as to that official.

12

However, the circumstances of the instant case are similar to those presented in Reyes.

13

There the plaintiff’s administrative grievance challenged changes to his prescription pain

14

medication regimen, which included morphine, for his degenerative spine condition. The

15

regimen was originally prescribed by plaintiff’s physician and approved by the prison’s Pain

16

Management Committee. Later that same year, plaintiff’s physician informed him that, at the

17

direction of Chief Medical Officer Dr. Heatley and Chief Physician and Surgeon Dr. Smith, both

18

on the prison’s Pain Management Committee, plaintiff’s pain medication would be gradually

19

reduced and discontinued. Plaintiff filed an appeal challenging these changes and asserting that

20

he was in “unbelievable pain,” without identifying either Dr. Heatley or Dr. Smith. The appeal

21

was denied and exhausted at the third level, each time in deference to the assessments of the Pain

22

Management Committee. Plaintiff then brought an action alleging, inter alia, deliberate

23

indifference by Dr. Heatley and Smith. The district court dismissed the action on the ground that

24

neither physician had been named in plaintiff’s appeal and therefore his claims against those

25

physicians were unexhausted.

26
27
28

The Ninth Circuit Court of Appeals reversed, initially recounting the purposes of the
PLRA exhaustion requirement:
The PLRA attempts to eliminate unwarranted federal-court
14

1
2
3
4

interference with the administration of prisons, and thus seeks to
afford corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal
case. Requiring exhaustion provides prison officials a fair
opportunity to correct their own errors and creates an administrative
record for grievances that eventually become the subject of federal
court complaints. Requiring inmates to comply with applicable
procedural regulations furthers these statutory purposes.

5
6

Reyes, 2016 WL 142601, at *2, 2016 U.S. App. LEXIS 433, at *6 (internal citations and

7

quotation marks omitted). The Court of Appeals reasoned, however, that “when prison officials

8

address the merits of a prisoner’s grievance instead of enforcing a procedural bar, the state’s

9

interests in administrative exhaustion have been served. Prison officials have had the opportunity

10

to address the grievance and correct their own errors and an administrative record has been

11

developed.” Id., 2016 WL 142601, at *2, 2016 U.S. App. LEXIS 433, at *7. Stated differently,

12

the Court found:

13
14
15
16
17

When prison officials opt not to enforce a procedural rule but
instead decide an inmate’s grievance on the merits, the purposes of
the PLRA exhaustion requirement have been fully served: prison
officials have had a fair opportunity to correct any claimed
deprivation and an administrative record supporting the prison’s
decision has been developed. Dismissing the inmate’s claim for
failure to exhaust under these circumstances does not advance the
statutory goal of avoiding unnecessary interference in prison
administration. Rather, it prevents the courts from considering a
claim that has already been fully vetted within the prison system.

18
19

Reyes, 2016 WL 142601, at *3, 2016 U.S. App. LEXIS 433, at *8-9 (citations omitted).

20

In the instant case, plaintiff’s appeal was granted, and therefore exhausted, at the first

21

level. See Harvey, 605 F.3d at 685; Brown, 422 F.3d at 936. Although defendants were not

22

named in the appeal, the appeals coordinator accepted the appeal for review, and CMF rendered a

23

decision on the merits. With this decision, CMF addressed plaintiff’s complaint internally,

24

corrected its own error, and created an administrative record, thus meeting the statutory purposes

25

of the PLRA’s exhaustion requirement. See Reyes, 2016 WL 142601, at *2-3, 2016 U.S. App.

26

LEXIS 433, at *6-9. Therefore, under Reyes, defendants are estopped from asserting that

27

plaintiff failed to exhaust his administrative remedies due to procedural error. Accord, Torres v.

28

Diaz, 2016 WL 374457, at *16, 2016 U.S. Dist. LEXIS 11773, at *42-44 (E.D. Cal. Feb. 1, 2016)
15

1

(Case No. 1:14-cv-0492 DAD SAB P) (findings and recommendations); Quezada v. Cate, No.

2

2016 WL 146118, at *3, 2016 U.S. Dist. LEXIS 4357, at *6-7 (E.D. Cal. Jan. 13, 2016) (Case

3

No. 1:13-cv-00960 AWI MJS P) (findings and recommendations).

4

On this ground alone, defendants’ motions for summary judgment should be denied.

5

Moreover, under the circumstances of this case, it is also reasonable to conclude that

6

plaintiff’s appeal satisfied CDCR’s procedural requirements insofar as his allegations were

7

sufficient to “assist the appeals coordinator in making a reasonable attempt to identify the staff

8

member(s) in question.” Cal. Code Regs. tit. 15, § 3084.2(a)(3). Several factors compel this

9

result.

10

First, plaintiff’s appeal begged for an immediate response.4 Plaintiff’s description of his

11

injuries and his ongoing pain (“severe pain,” “a hell of unrelenting, agony of pain and anguish,”

12

“needlessly suffering,” see Compl., ECF No. 1 at 24, 26), clearly informed the appeals

13

coordinator that plaintiff had a credible, serious and immediate medical problem.

14

Second, the alleged reasons for plaintiff’s unmet treatment needs – deference to prison

15

policy and the extended absence of plaintiff’s primary care physician – could have been quickly

16

and easily verified.

17
18
19
20
21
22
23
24
25

Third, in light of the limited nature of plaintiff’s requested relief and the short periods of
time during which he alleged denial of that relief,5 it appears that a “reasonable attempt” by the
4

CDCR regulations authorize the expedited processing of a designated “emergency appeal,” see
Cal. Code Regs. tit. 15, § 3084.9 (appeals reflecting, inter alia, “[s]erious and imminent threat to
health or safety”); see also CCHCS Manual, Vol. 1, Chap. 8, § III-E. Although it is not clear on
this record (and assuming the accuracy of the dates in the complaint), the only reasonable
explanation for the appeals coordinator to process plaintiff’s appeal as a routine, rather than
emergency, matter, is that the coordinator was aware that plaintiff “ran into” Dr. Wieland on
September 24, 2012 (the day before the appeal was file-stamped received), who “immediately
took over plaintiff’s medical care and treatment and immediately provided plaintiff some much
needed pain relief by increasing his prescribed pain medication.” See Compl., ECF No. 1 at ¶¶
36-7.
5

26
27
28

Review of plaintiff’s allegations together with his medical record would have revealed that
plaintiff alleged denial of adequate pain medication for the following periods: (1) upon his return
to prison from the U.C. Davis Burn Center on September 7, 2012, through his admittance to the
U.C. Davis Burn Center as an in-patient on approximately September 11, 2012, a period of four
days; and (2) upon his return to prison one week later, approximately September 18, 2012,
16

1

appeals coordinator, see § 3084.2(a)(3), could have identified the medical providers who refused

2

plaintiff’s requests for additional pain medication. Indeed, plaintiff alleges that Dr. Wieland,

3

upon review of plaintiff’s medical record, readily identified defendants as the doctors who denied

4

plaintiff’s requests for adequate pain medication. See Pl. Decl., ECF No. 33 at ¶¶ 21-3.

5

These factors support a finding that plaintiff’s appeal complied with CDCR’s procedural

6

requirements. This finding, together with the fact that plaintiff obtained his requested relief at the

7

first level, establish that defendants have not carried their burden of demonstrating that plaintiff

8

failed to exhaust his available administrative remedies. Albino, 747 F.3d at 1172.

9

Accordingly, both pursuant to Reyes and pursuant to this court’s construction of plaintiff’s

10

appeal under Albino, this court recommends that defendants’ motions for summary judgment on

11

failure-to-exhaust grounds be denied.

12

VII.

13

For the reasons set forth above, IT IS HEREBY ORDERED that:

14

1. Defendant Mathis’ motion to strike plaintiff’s surreply, ECF No. 36, is denied.

15

2. Defendant Daszko’s request to submit further briefing in response to plaintiff’s

16

Conclusion

surreply, ECF No. 35 at 4, is denied.

17

Further, IT IS HEREBY RECOMMENDED that:

18

1. The motion for summary judgment filed by defendant Mathis, ECF No. 19, be denied.

19

2. The motion for summary judgment filed by defendant Daszko, ECF No. 21, be denied.

20

3. This action should proceed on plaintiff’s Eighth Amendment claims against defendants

21
22

Mathis and Daszko.
These findings and recommendations are submitted to the United States District Judge

23

assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

24

after being served with these findings and recommendations, any party may file written

25

objections with the court and serve a copy on all parties. Such a document should be captioned

26

“Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

27
28

through the date he signed his appeal (September 20, 2012), or the date it was designated received
(September 25, 2012).
17

1

failure to file objections within the specified time may waive the right to appeal the District

2

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3

DATED: February 5, 2016

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
18