Henderson v. California Department of Corrections and Rehabilitations et al

Filing 89

ORDER by Judge Ronald M. Whyte Granting 54 Motion to Dismiss; Terminating 64 Stipulated Protective Order. (jgS, COURT STAFF) (Filed on 9/20/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CURTIS LEE HENDERSON, SR.,
Plaintiff,

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v.
DR. K. YU, et al.,
Defendants.

No. C 11-4918 RMW (PR)
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS
(Docket Nos 54, 64.)

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Plaintiff, proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983,
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alleging that defendants were deliberately indifferent to his serious medical needs. Defendant
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Dr. K Yu (“Dr. Yu”) has moved to dismiss the claim against him for failure to exhaust. Plaintiff
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has filed an opposition and Dr. Yu has filed a reply. Having carefully considered the papers
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submitted, the court GRANTS Dr. Yu’s motion to dismiss for the reasons set out below.
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BACKGROUND
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The following facts are undisputed unless otherwise indicated.
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On May 11, 2011, plaintiff was assaulted and suffered serious injuries. (Compl. at 4.)
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He was diagnosed with a fractured right clavicle and needed his upper teeth removed. (Id.)
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Plaintiff had surgery to treat his facial fracture, which required the use of two plates and
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approximately ten screws, plus the removal of several upper teeth. (Id.) Plaintiff was prescribed
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a pain medication and a soft-food diet because he had no teeth to chew solid food. (Id.)
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Order Granting Defendant’s Motion to Dismiss
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In July 2011, plaintiff saw Dr. Espinoza and requested a renewal of his orders for soft

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food and liquid lactose-free food. (Id. at 5.) He also requested an ice chrono and a sling, but Dr.

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Espinoza only prescribed tylenol and indomethacin for pain. (Id.)

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On September 15, 2011, plaintiff saw Dr. Yu, and requested that Dr. Yu renew plaintiff’s

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orders for soft food, liquid lactose-free food, pain medication, and surgery to repair plaintiff’s

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broken clavicle. (Id. at 6.) Dr. Yu also did not help plaintiff. (Id.)

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DISCUSSION
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought

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with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a

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prisoner confined in any jail, prison, or other correctional facility until such administrative

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remedies as are available are exhausted.” 28 U.S.C. § 1997e(a). Nonexhaustion under

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§ 1997e(a) is an affirmative defense; that is, defendants have the burden of raising and proving

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the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). In deciding

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a motion to dismiss for failure to exhaust administrative remedies, the court may look beyond the

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pleadings and decide disputed issues of fact. Id. at 1119-20. If the court concludes that the

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prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal without

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prejudice. Id. at 1120.

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Failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, 549 U.S.

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199, 211 (2007). Defendants have the burden of raising and proving the absence of exhaustion,

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and inmates are not required to specifically plead or demonstrate exhaustion in their complaints.

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Id. at 215-17. As there can be no absence of exhaustion unless some relief remains available, a

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movant claiming lack of exhaustion must demonstrate that pertinent relief remained available,

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whether at unexhausted levels or through awaiting the results of the relief already granted as a

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result of that process. Brown v. Valoff, 422 F.3d 926, 936-37 (9th Cir. 2005).

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The California Department of Corrections and Rehabilitation (“CDCR”) provides its

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inmates and parolees the right to appeal administratively “any departmental decision, action,

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condition, or policy which they can demonstrate as having an adverse effect upon their welfare.”

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Order Granting Defendant’s Motion to Dismiss
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Cal. Code Regs. tit. 15, § 3084.1(a). It also provides its inmates the right to file administrative

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appeals alleging misconduct by correctional officers. Cal. Code Regs. tit. 15, § 3084.1(e). In

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order to exhaust available administrative remedies within this system, a prisoner must submit his

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complaint on CDCR Form 602 (“602”) and proceed through several levels of appeal:

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(1) informal level grievance filed directly with any correctional staff member, (2) first formal

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level appeal filed with one of the institution's appeal coordinators, (3) second formal level appeal

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filed with the institution head or designee, and (4) third formal level appeal filed with the CDCR

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director or designee (“Director’s level”). Cal. Code Regs. tit. 15, § 3084.5; Brodheim v. Cry,

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584 F.3d 1262, 1264-65 (9th Cir. 2009). This satisfies the administrative remedies exhaustion

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requirement under Section 1997e(a).
Dr. Yu argues that plaintiff has failed to exhaust his claim against him before September

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28, 2011, the date that plaintiff filed the underlying complaint. Dr. Yu notes that plaintiff had

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only filed one administrative grievance between September 15, 2011 – the date he saw Dr. Yu –

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and September 28, 2011. That grievance, COR HC 11048218, however, concerned getting

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copies of plaintiff’s medical records. (Mot., Ex. A at 3, Ex. B.) It did not relate to plaintiff’s

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underlying complaint here that he was not receiving proper medical treatment for his injuries.

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Plaintiff responds that the grievance which exhausted his claim against Dr. Yu was SQ

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HC 11022920. (Opp., Ex. A.)
A review of SQ HC 11022920 shows that plaintiff submitted this grievance to prison

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officials on July 20, 2011 – before he ever saw Dr. Yu. (Id.) In that grievance, plaintiff alleged

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that he suffered a broken clavicle and was in extreme pain. (Id.) Plaintiff asserted that he was

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being generally denied medical treatment, and requested proper pain medication as well as

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surgery to correct the fracture. (Id.) On September 14, 2011, the response from the first level of

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review “partially granted” plaintiff’s grievance, noting that plaintiff had an appointment with an

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orthopedic physician on August 11, 2011, and was taking pain medications. (Id.) Plaintiff met

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with Dr. Yu the following day, on September 15, 2011, the day of which plaintiff complains.

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Rather than file an administrative appeal to the second level of review, plaintiff filed a federal

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Order Granting Defendant’s Motion to Dismiss
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complaint.

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As an initial matter, the court notes that SQ HC 11022920 was filed before plaintiff even

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met with Dr. Yu. Thus, SQ HC 11022920 could not have provided any notice to prison officials

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regarding the nature of the wrong for which redress was sought regarding Dr. Yu’s actions.

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Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quoting Strong v. David, 297 F.3d 646,

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650 (7th Cir. 2002)).

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More importantly, the obligation to exhaust persists as long as some remedy is available;

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when that is no longer the case, the prisoner need not further pursue the grievance. Brown v.

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Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). Here, there is no indication that plaintiff could not

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have continued to grieve his issue within the administrative appeal system. This is not a case

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like Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010), because here, plaintiff clearly was not

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satisfied with his partial grant as noted by this underlying action, and he was thus required to

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proceed through all three levels of appeal before he satisfied exhaustion.

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Plaintiff has not provided any evidence to meet his burden of demonstrating that the

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grievance process was otherwise unavailable to proceed through all three levels of appeal.

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Further, plaintiff has not provided any other evidence of exhaustion. Accordingly, the court

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concludes that plaintiff has failed to exhaust his administrative remedies.

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CONCLUSION
Defendant Dr. Yu’s motion to dismiss is GRANTED. Judgment shall be entered in favor

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of Dr. Yu. In light of the court’s decision, the parties’ stipulated protective order is terminated

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as unnecessary.

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This order terminates docket numbers 54 and 64.

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IT IS SO ORDERED.

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DATED:
RONALD M. WHYTE
United States District Judge

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Order Granting Defendant’s Motion to Dismiss
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

CURTIS LEE HENDERSON SR.,

Case Number: CV11-04918 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
CA DEPT OF CORRECTIONS et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on September 20, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Curtis Lee Henderson H-43488
California State Prison
A2-107
P.O. Box 409020
Ione, CA 95640

Dated: September 20, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk