Anderson v. Hernandez et al

Filing 40

ORDER: (1) Adopting Report and Recommendation; (2) Granting in Part Defendants' Motion to Dismiss; (3) Denying Defendants' Motion for Summary Judgment for Failure to Exhaust Administrative Remedies; and (4) Denying Plaintiff's Motion to be Transferred to Another Institution. Signed by Judge Roger T. Benitez on 8/29/2016.(All non-registered users served via U.S. Mail Service)(knb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TUANJA EDWARD ANDERSON, Case No.: 3:15-cv-00993-BEN-BLM Plaintiff, 12 13 v. 14 ORDER: A. HERNANDEZ, et al., 15 (1) ADOPTING REPORT AND RECOMMENDATION; Defendants. (2) GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS; 16 17 18 (3) DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES; AND 19 20 21 22 (4) DENYING PLAINTIFF’S MOTION TO BE TRANSFERRED TO ANOTHER INSTITUTION 23 24 25 26 27 Plaintiff Tuanja Edward Anderson, a state prisoner proceeding pro se and in forma pauperis, brought this action under 42 U.S.C. § 1983 for violations of the Americans with Disabilities Act (“ADA”) and the Eighth Amendment. Defendants filed a motion to 28 1 3:15-cv-00993-BEN-BLM 1 dismiss the Complaint (ECF No. 23) and for summary judgment for failure to exhaust 2 administrative remedies (ECF No. 24). Plaintiff filed a motion requesting transfer to 3 another institution. (ECF No. 34.) 4 On June 20, 2016, the Honorable Barbara L. Major, United States Magistrate 5 Judge, issued a thorough and thoughtful Report and Recommendation (“R&R”) in which 6 she recommended (1) granting in part and denying in part Defendants’ motion to dismiss, 7 (2) denying Defendants’ motion for summary judgment, and (3) denying Plaintiff’s 8 motion to be transferred to another institution. (ECF No. 37.) Defendants object to the 9 R&R’s recommendation to deny Defendants’ motion for summary judgment on the 10 ground that Plaintiff failed to exhaust his administrative remedies. (ECF No. 38.) 11 Plaintiff replied to Defendants’ Objections. (ECF No. 39.) 12 Where a timely objection to a report and recommendation has been filed, the 13 district court reviews de novo those portions of the report or specific proposed findings or 14 recommendations to which an objection was filed. 28 U.S.C. § 636(b)(1). This Court 15 has carefully reviewed the R&R, Defendants’ Objections, Plaintiff’s Reply, and the 16 remainder of the record in this matter and ADOPTS the R&R in full. 17 I. 18 LAW GOVERNING EXHAUSTION OF ADMINISTRATIVE REMEDIES The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust 19 “available administrative remedies” before bringing an action with respect to prison 20 conditions. 42 U.S.C. § 1997e(a). The proper procedural device to determine whether 21 administrative remedies have been exhausted is a summary judgment motion. Williams 22 v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (citing Albino v. Baca, 747 F.3d 1162, 23 1168 (9th Cir. 2014)). To prove a failure to exhaust, the defendant “must first prove that 24 there was an available administrative remedy and that the prisoner did not exhaust that 25 available remedy.” Id. “Then, the burden shifts to the plaintiff, who must show that 26 there is something particular in his case that made the existing and generally available 27 administrative remedies effectively unavailable to him by ‘showing that the local 28 remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously 2 3:15-cv-00993-BEN-BLM 1 futile.’” Id. (internal citation omitted). The ultimate burden of proof, however, remains 2 with the defendant. Id. 3 If undisputed evidence viewed in the light most favorable to the prisoner shows a 4 failure to exhaust, the defendant is entitled to summary judgment under Federal Rule of 5 Civil Procedure 56. Albino, 747 F.3d at 1166. If material facts are disputed, summary 6 judgment should be denied. Id. 7 II. 8 9 10 DISCUSSION The Court has reviewed Defendants’ objections and the record in this case, and overrules each objection. Defendants first argue that Plaintiff’s claims under the ADA and for deliberate 11 indifference to medical needs have not been exhausted. Relatedly, they oppose the 12 R&R’s conclusion that Defendants did not present any evidence establishing what, if any, 13 administrative remedies and processes were available to Plaintiff at the various prisons 14 and psychiatric facilities where he was housed or whether he was provided access to 15 writing materials and the relevant prison forms at all times during his treatment in each of 16 the facilities. 17 The R&R found that there is a genuine issue of material fact as to whether Plaintiff 18 had meaningful access to the administrative remedy process during the relevant times at 19 the relevant facilities. Having considered the R&R, Defendants’ Objections, and the 20 record, the Court agrees with the R&R. Defendants did not establish “the extent of the 21 availability of the administrative process during [Plaintiff’s] placement in a mental health 22 crisis bed, suicide watch, and Plaintiff’s subsequent recovery.” Millner v. Biter, No. 13- 23 cv-2029, 2016 WL 110425, at *6 (E.D. Cal. Jan. 11, 2016). Genuine disputed issues of 24 material fact exist as to whether the administrative remedies were “effectively 25 unavailable” to Plaintiff. 26 Defendants also object to the R&R’s analysis that there is a genuine issue of 27 material fact as to whether Plaintiff submitted a timely grievance about his deliberate 28 indifference to safety claim, and whether prison officials prevented the grievance from 3 3:15-cv-00993-BEN-BLM 1 being processed. The Court again overrules Defendants’ objection. Plaintiff’s sworn 2 statements in his declaration and Complaint are evidence that he attempted to file a 3 timely grievance with C/O Crawford, and that prison officials made the administrative 4 process unavailable to him. Defendants’ declarations constitute evidence that Plaintiff 5 did not file a timely appeal. As the R&R noted, “[t]his is clearly a disputed material fact 6 and it is not the Court’s province on a motion for summary judgment to make credibility 7 determinations or weigh conflicting evidence with respect to a disputed material fact.” 8 (R&R at 38.) 9 III. 10 CONCLUSION The R&R correctly concludes that Defendants have not established that they are 11 entitled to summary judgment on the basis of Plaintiff’s failure to exhaust administrative 12 remedies. Accordingly, Defendants’ objections are overruled and the R&R, including the 13 portions to which no objections were made, is ADOPTED in its entirety. 14 The Court orders as follows: 15 Defendants’ motion to dismiss is GRANTED IN PART. Specifically, the Court 16 (1) grants Defendants’ motion to dismiss claims against Associate Warden Hernandez but 17 grants Plaintiff leave to amend; (2) grants the motion to dismiss Plaintiff’s ADA claim 18 against Defendants Stout and Hernandez in their individual capacities and dismisses the 19 individual capacity claims with prejudice; (3) grants the motion to dismiss the ADA 20 claim but grants Plaintiff leave to amend to state a claim against the California 21 Department of Corrections and Rehabilitation; (4) grants the motion to dismiss Plaintiff’s 22 claim for deliberate indifference to safety against Defendants Heddy, Davis, and Bustos 23 but grants Plaintiff leave to amend; and (5) grants the motion to dismiss Plaintiff’s claim 24 for deliberate indifference to his medical needs against Defendants Heddy, Davis, Bustos, 25 and Miller but grants Plaintiff leave to amend. 26 /// 27 /// 28 /// 4 3:15-cv-00993-BEN-BLM 1 Defendants’ motion for summary judgment is DENIED. 2 Plaintiff’s motion to be transferred to another institution is DENIED. 3 IT IS SO ORDERED. 4 5 Dated: August 29, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 3:15-cv-00993-BEN-BLM

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