(PC) Hernandez v. Clark-Barlow

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ANTHONY CEASAR HERNANDEZ, No. 2:17-cv-1681-TLN-EFB P

12 Plaintiff,

13 v. FINDINGS AND RECOMMENDATIONS

14 JOE LIZZARAGA, et al.,

15 Defendants.

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17 Plaintiff is a California Department of Corrections and Rehabilitation (“CDCR”) inmate

18 proceeding without counsel in an action brought under 42 U.S.C. § 1983. He filed this action on

19 August 14, 2017. ECF No. 1. On May 1, 2018, the court determined that plaintiff’s complaint

20 alleged a cognizable Eighth Amendment deliberate indifference to medical needs claim against

21 defendant Lisa Clark-Barlow. ECF No. 11. The other defendants listed in plaintiff’s complaint

22 were dismissed on February 5, 2018. ECF Nos. 25 & 34. Now, defendant Clark-Barlow has filed

23 a motion for summary judgment (“motion”) wherein she argues that plaintiff failed to

24 administratively exhaust the claim against her. ECF No. 39. Plaintiff has filed an opposition to

25 the motion. ECF No. 49.

26 After review of the pleadings and, for the reasons discussed below, the court concludes

27 that defendant Clark-Barlow’s motion should be granted.

28 ////

1 Legal Standards

2 A. Summary Judgment

3 Summary judgment is appropriate when there is “no genuine dispute as to any material

4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary

5 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant

6 to the determination of the issues in the case, or in which there is insufficient evidence for a jury

7 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600

8 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.

9 U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment

10 motion asks whether the evidence presents a sufficient disagreement to require submission to a

11 jury.

12 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims

13 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to

14 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for

15 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.

16 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary

17 judgment practice, the moving party bears the initial responsibility of presenting the basis for its

18 motion and identifying those portions of the record, together with affidavits, if any, that it

19 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323;

20 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets

21 its burden with a properly supported motion, the burden then shifts to the opposing party to

22 present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson,

23 477 U.S. at 248; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995).

24 A clear focus on where the burden of proof lies as to the factual issue in question is crucial

25 to summary judgment procedures. Depending on which party bears that burden, the party seeking

26 summary judgment does not necessarily need to submit any evidence of its own. When the

27 opposing party would have the burden of proof on a dispositive issue at trial, the moving party

28 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. National

1 Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters

2 which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-

3 24 (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a

4 summary judgment motion may properly be made in reliance solely on the ‘pleadings,

5 depositions, answers to interrogatories, and admissions on file.’”). Summary judgment should be

6 entered, after adequate time for discovery and upon motion, against a party who fails to make a

7 showing sufficient to establish the existence of an element essential to that party’s case, and on

8 which that party will bear the burden of proof at trial. See id. at 322. In such a circumstance,

9 summary judgment must be granted, “so long as whatever is before the district court demonstrates

10 that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at

11 323.

12 To defeat summary judgment the opposing party must establish a genuine dispute as to a

13 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that

14 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at

15 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law

16 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is

17 determined by the substantive law applicable for the claim in question. Id. If the opposing party

18 is unable to produce evidence sufficient to establish a required element of its claim that party fails

19 in opposing summary judgment. “[A] complete failure of proof concerning an essential element

20 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S.

21 at 322.

22 Second, the dispute must be genuine. In determining whether a factual dispute is genuine

23 the court must again focus on which party bears the burden of proof on the factual issue in

24 question. Where the party opposing summary judgment would bear the burden of proof at trial on

25 the factual issue in dispute, that party must produce evidence sufficient to support its factual

26 claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.

27 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Rather, the opposing party must, by affidavit

28 or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue

1 for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to

2 demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such

3 that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,

4 477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.

5 The court does not determine witness credibility. It believes the opposing party’s

6 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;

7 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the

8 proponent must adduce evidence of a factual predicate from which to draw inferences. American

9 Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir. 1991) (Kozinski, J.,

10 dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at

11 issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th

12 Cir. 1995). On the other hand, the opposing party “must do more than simply show that there is

13 some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could

14 not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

15 trial.’” Matsushita, 475 U.S. at 587 (citation omitted). In that case, the court must grant

16 summary judgment.

17 B. Administrative Exhaustion

18 The Prison Litigation Reform Act of 1995 (hereafter “PLRA”) states that “[n]o action

19 shall be brought with respect to prison conditions under section 1983 . . . or any other Federal

20 law, by a prisoner confined in any jail, prison, or other correctional facility until such

21 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA

22 applies to all suits about prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), but a prisoner is

23 only required to exhaust those remedies which are “available.” See Booth v. Churner, 532 U.S.

24 731, 736 (2001). “To be available, a remedy must be available as a practical matter; it must be

25 capable of use; at hand.” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (citing Brown v.

26 Valoff, 422 F.3d 926, 937 (9th Cir. 2005)) (internal quotations omitted).

27 Dismissal for failure to exhaust should generally be brought and determined by way of a

28 motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Id. at

1 1168. Under this rubric, the defendant bears the burden of demonstrating that administrative

2 remedies were available and that the plaintiff did not exhaust those remedies. Id. at 1172. If

3 defendant carries this burden, then plaintiff must “come forward with evidence showing that there

4 is something in his particular case that made the existing and generally available administrative

5 remedies effectively unavailable to him.” Id. If, however, “a failure to exhaust is clear on the

6 face of the complaint, a defendant may move for dismissal under Rule 12(b)(6).” Id. at 1166.

7 Analysis

8 Plaintiff alleges that, on January 16, 2017 and while incarcerated at Mule Creek State

9 Prison, he was bitten by a spider. ECF No. 1 at 4. He claims that he brought the bite to Clark-

10 Barlow’s attention and she refused to provide him with medical attention. Id. Plaintiff alleges he

11 went on to experience adverse health effects from the bite, including a high-fever and diarrhea.

12 Id.

13 Plaintiff filed one administrative grievance – numbered MCSP HC 17050533 – related to

14 the claim against Clark-Barlow. ECF No. 39-4 at 3, ¶ 9. That grievance went through three

15 levels of review and received a final administrative denial on August 25, 2017. Id. at 4, ¶ 11; 15-

16 16. Plaintiff filed the immediate lawsuit approximately eleven days prior to that final denial – on

17 August 14, 2017. ECF No. 1. Thus, he failed to comply with the requirements of the PLRA. See

18 McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (dismissal without prejudice is the

19 proper course where inmate did not administratively exhaust prior to filing suit in federal court).

20 Plaintiff offers several unpersuasive arguments addressing exhaustion in his opposition.1

21 First, he points out that, in one document appended to Clark-Barlow’s motion, there is an

22 inconsistency in dates. Specifically, the final decision on grievance 17050533 is listed as “due”

23 on August 24, 2017; the same document was not listed as “closed” until August 25, 2017. ECF

24 No. 39-4 at 9. Plaintiff claims that this alleged one day inconsistency: (1) raises doubts as to the

25 validity of defendant’s dates generally; and (2) waives the exhaustion requirement via prison

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27 1 The handwritten opposition is faded and, in parts, extremely difficult to read.

Recognizing the limited litigative resources afforded inmates, the court has done its best to make

28 sense of the arguments contained in that filing.

1 officials’ non-compliance with their own deadlines. ECF No. 49 at 4-6. With respect to the first

2 point, the documents relied upon by Clark-Barlow are all consistent on the point that matters:

3 plaintiff’s grievance received a final administrative decision on August 25, 2017.2 The response

4 itself (ECF No. 39-4 at 15-16), the spreadsheet he relies upon for the foregoing inconsistency (id.

5 at 9), and the declaration of S. Gates3 all agree on that date (id. at 4). Thus, the court is not

6 persuaded by plaintiff’s assertion – otherwise unsupported – that the court should be skeptical of

7 prison official’s date-keeping. With respect to the second point, this court is unaware of any

8 authority supporting the proposition that prison official’s failure to comply with their own internal

9 deadlines automatically waives the exhaustion requirement. See e.g., Mills v. Mitchell, No. 16-

10 cv-5095-HSG, 2018 U.S. Dist. LEXIS 44768 *23-24, 2018 WL 1400427 (N.D. Cal. Mar. 19,

11 2018) (“To the extent that Plaintiff is arguing that his administrative remedies should be

12 considered exhausted because Defendants failed to complete the modification orders within the

13 prescribed deadlines, the Court is unaware of any Ninth Circuit precedent finding such an

14 exception.”).

15 Plaintiff also argues that exhaustion was unavailable to him. This argument, as the best

16 the court can discern, is nothing more than a second front for disputing prison officials’

17 compliance with their own deadlines. ECF No. 49 at 6-8. Regardless, the record shows that

18 plaintiff was able to fully exhaust several grievances over the course of 2017. ECF No. 39-4 at 9-

19 10. And, had he waited two weeks before filing this suit, he would have received a final

20 administrative decision on the relevant claim. Thus, the court cannot conclude that prison

21 officials thwarted exhaustion or made it unavailable to plaintiff.

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2 Plaintiff’s point in referencing an August 24 “due” date as being in consistent with an

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August 25 “close” date is not entirely clear. But it in no way undermines the key fact that he

26 commenced this action eleven days before he received a final administrative denial of his

grievance.

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3 Gates is a Chief in the Health Care and Appeals Branch of California Correctional

28 Health Care Services. ECF No. 39-4 at 1.

1 Conclusion

2 For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

3 1. Defendant Clark Barlow’s motion for summary judgment (ECF No. 39) be

4 GRANTED;

5 2. Plaintiff's claim against her be DISMISSED without prejudice for failure to exhaust

6 administrative remedies; and

7 3. The Clerk be directed to close the case.

8 These findings and recommendations are submitted to the United States District Judge

9 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

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

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

12 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

13 || within the specified time may waive the right to appeal the District Court’s order. Turner v.

14 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

15 || Dated: October 17, 2019.

16 tid, PDEA

7 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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