Turner v. Ghaly

• Court: District Court, N.D. California
• Decided: March 21, 2022
• Docket: 3:20-cv-02791
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY DAWAYNE LEE TURNER, Case No. 20-cv-02791-EMC

8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT 10 SABRY GHALY, et al., Docket Nos. 14, 28-30, 32 11 Defendants.

12 13 I. INTRODUCTION 14 In this pro se prisoner’s civil rights action, Anthony Dawayne Lee Turner complains about 15 prison officials’ response to his medical problems. The remaining Defendants, Dr. Ghaly and 16 Nurse Paley, now move for summary judgment. Mr. Turner opposes the motion. For the reasons 17 discussed below, Defendants’ motion for summary judgment will be granted and judgment entered 18 in their favor. 19 II. BACKGROUND 20 Mr. Turner alleges the following about treatment related to his swollen right leg: After Mr. 21 Turner was diagnosed with a blood clot and returned from a hospital to San Quentin State Prison, 22 Dr. Ghaly ordered blood thinner pills and said he would put a red flag in Mr. Turner’s chart to 23 note that Mr. Turner was allergic to “amoldopine.” Docket No. 5-2 (“First Amended Complaint”) 24 at 27. Dr. Ghaly and Nurse Paley failed to move Mr. Turner to a lower bunk and lower tier. Id. at 25 27-28. Mr. Turner did not receive treatment “for the pain in [his] leg, no ointment for [his] dry 26 skin and infection sores, and no medication for pain or not draining the fluid out of [his] knee and 27 leg.” Id. at 28-29. These events occurred at San Quentin State Prison (“San Quentin”). See id. 1 A. California’s Framework for Administrative Appeals 2 During the relevant time period, the California Department of Corrections and 3 Rehabilitation (“CDCR”) provided inmates with the following administrative remedies, also 4 referred to as the administrative grievance process.1 CDCR provided its inmates the right to 5 appeal administratively “any policy, decision, action, condition or omission by the department or 6 its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or 7 her health, safety or welfare.” 15 Cal. Code Regs. § 3084.1(a). Grievance issues are separated 8 into two categories: custody issues and healthcare issues. 9 To grieve a healthcare issue, a prisoner must submit a CDCR Form 602 HC and “explain 10 the decision, action, condition, omission, policy, or regulation that has had a material adverse 11 effect upon [his] health and welfare for which [he sought] administrative remedy.” 15 Cal. Code 12 Regs. §§ 3999.226, 3999.277(a). The prisoner must state all facts known and available to him 13 regarding the healthcare issue being grieved at the time of submission; and must identify all staff 14 member(s) involved. 15 Cal. Code Regs. § 3999.226(g). Healthcare grievances are subject to two 15 levels of review: an institutional level of review and a headquarters level of review. 15 Cal. Code 16 Regs. § 3999.226(a)(1). A review at the headquarters level exhausts the prisoner’s administrative 17 remedies for the healthcare grievance. 15 Cal. Code Regs. §§ 3087.5(h), 3999.230 (2019). 18 B. Mr. Turner’s Administrative Grievances 19 Mr. Turner filed three grievances regarding healthcare while at San Quentin. See Docket 20 No. 14-1 (“Woodson Declaration”) ¶¶ 10-14 (describing grievances), Docket No. 14-2 (“Exhibit 21 A”) (listing grievances). 22 Mr. Turner filed his first healthcare grievance on September 11, 2019 (“First Grievance”). 23 See Docket No. 14-3 (“Exhibit B”) at 6. Mr. Turner received an institutional-level response on 24

25 1 The regulations that set out the features of the administrative grievance process for custody grievances for California prisoners underwent a substantial restructuring in 2020. On March 25, 26 2020, and effective June 1, 2020, 15 Cal. Code Regs. §§ 3084-3084.9 were repealed and replaced with renumbered and amended provisions at sections 3480 through 3487. Because the alleged 27 incidents took place prior to June 1, 2020, the current administrative grievance process does not 1 November 18, 2019. See id. at 2. Mr. Turner did not appeal his First Grievance to the 2 headquarters level. See Ex. A (showing the First Grievance was not appealed beyond the 3 institutional level). 4 Mr. Turner filed his second healthcare grievance on November 23, 2019 (“Second 5 Grievance”). See Docket No. 14-4 (“Exhibit C”) at 6. Mr. Turner received an institutional-level 6 response on April 11, 2020, see id. at 8, and appealed to the headquarters level on April 24, 2020, 7 see id. at 5. Mr. Turner received a headquarters-level response to his Second Grievance on July 8 21, 2020. See id. at 2. 9 Mr. Turner filed his third healthcare grievance on April 8, 2020 (“Third Grievance”). See 10 Docket No. 14-5 (“Exhibit D”) at 4. Mr. Turner received an institutional-level response on 11 August 11, 2020. See id. at 2. Mr. Turner did not appeal his Third Grievance to the headquarters 12 level.2 See Ex. A (showing the Third Grievance was not appealed beyond the institutional level). 13 C. Procedural Background 14 Mr. Turner filed the instant civil rights action on April 16, 2020. See Docket No. 1 at 3; 15 see also Houston v. Lack, 487 U.S. 266, 270-71 (1988) (announcing the prison mailbox rule). Mr. 16 Turner complained that he was improperly placed in an upper tier and upper bunk, see Docket No. 17 1 at 2, and that he was not given proper medical treatment for his leg, see id. at 3. The Court 18 dismissed Mr. Turner’s complaint with leave to amend. See Docket No. 3. 19 Mr. Turner filed a First Amended Complaint. See Docket No. 5 (“First Amended 20 Complaint”). The Court screened the First Amended Complaint pursuant to 28 U.S.C. § 1915A, 21 found that Mr. Turner had stated a cognizable Eighth Amendment against Dr. Ghaly and Nurse 22 Paley, and ordered these Defendants to respond to that claim. See Docket No. 6. 23 III. VENUE AND JURISDICTION 24 Venue is proper in the Northern District of California because some of the events or 25 omissions giving rise to the complaint occurred at a prison in Marin County, which is located 26 2 In the MSJ, Defendants state that Mr. Turner received a headquarters-level response to the Third 27 Grievance on August 11, 2020. See MSJ at 3, 6. This is incorrect. The record shows that Mr. 1 within the Northern District. See 28 U.S.C. §§ 84, 1391(b). The Court has federal question 2 jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331. 3 IV. LEGAL STANDARD FOR SUMMARY JUDGMENT 4 Summary judgment is proper where the pleadings, discovery and affidavits show that there 5 is “no genuine dispute as to any material fact and [that] the moving party is entitled to judgment as 6 a matter of law.” Fed. R. Civ. P. 56(a). A court will grant summary judgment “against a party 7 who fails to make a showing sufficient to establish the existence of an element essential to that 8 party’s case, and on which that party will bear the burden of proof at trial . . . since a complete 9 failure of proof concerning an essential element of the nonmoving party’s case necessarily renders 10 all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is 11 material if it might affect the outcome of the lawsuit under governing law, and a dispute about 12 such a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict 13 for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 14 In a typical summary judgment motion, a defendant moves for judgment against a plaintiff 15 on the merits of his claim. In such a situation, the moving party bears the initial burden of 16 identifying those portions of the record which demonstrate the absence of a genuine dispute of 17 material fact. The burden then shifts to the nonmoving party to “go beyond the pleadings, and by 18 his own affidavits, or by the ‘depositions, answers to interrogatories, or admissions on file,’ 19 designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324. 20 When a defendant moves for summary judgment on an affirmative defense on which he 21 bears the burden of proof at trial, he must come forward with evidence which would entitle him to 22 a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 23 1532, 1536 (9th Cir. 1992). The failure to exhaust administrative remedies is an affirmative 24 defense that must be raised in a motion for summary judgment. See Albino v. Baca, 747 F.3d 25 1162, 1166 (9th Cir. 2014) (en banc). On a motion for summary judgment for nonexhaustion, the 26 defendant has the initial burden to prove “that there was an available administrative remedy, and 27 that the prisoner did not exhaust that available remedy.” Id. at 1172. If the defendant carries that 1 something in his particular case that made the existing and generally available administrative 2 remedies effectively unavailable to him.” Id. The ultimate burden of proof remains with the 3 defendant, however. Id. If material facts are disputed, summary judgment should be denied, and 4 the “district judge rather than a jury should determine the facts” on the exhaustion question, id. at 5 1166, “in the same manner a judge rather than a jury decides disputed factual questions relevant to 6 jurisdiction and venue,” id. at 1170-71. 7 A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is 8 based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder 9 v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s verified complaint 10 as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, 11 plaintiff stated under penalty of perjury that contents were true and correct, and allegations were 12 not based purely on his belief but on his personal knowledge). 13 The court’s function on a summary judgment motion is not to make credibility 14 determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. 15 Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must 16 be viewed in the light most favorable to the nonmoving party, and inferences to be drawn from the 17 facts must be viewed in the light most favorable to the nonmoving party. See id. at 631. 18 V. DISCUSSION 19 Defendants argue that Mr. Turner failed to identify Dr. Ghaly and Nurse Paley as 20 wrongdoers in any grievance, and that in any event none of Mr. Turner’s three grievances was 21 properly exhausted prior to the filing of the instant lawsuit. See generally, Docket No. 14 22 (“MSJ”). The Court agrees with the second argument, and so need not examine the first. 23 A. Mr. Turner was Required to Exhaust His Administrative Remedies Before Filing Suit 24 “No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or 25 any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until 26 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion 27 in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002); 1 judicial discretion to craft exceptions to the requirement). All available remedies must be 2 exhausted; those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and 3 effective.’” Porter, 534 U.S. at 524. Even when the prisoner seeks relief not available in 4 grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. Id.; Booth v. 5 Churner, 532 U.S. 731, 741 (2001). 6 B. The First and Third Grievances were not Exhausted 7 The record reveals that Mr. Turner appealed neither his First nor his Third Grievances to 8 the headquarters level. See Exs. B, D; see also supra II.B. In both instances, he received an 9 institutional-level response which informed him that if he was “dissatisfied with the Institutional 10 Level Response,” he could “submit the entire health care grievance package for headquarters’ 11 level review,” given instructions on how to do so, and told that “[t]he headquarters’ level review 12 constitutes the final disposition on your health care grievance and exhausts your administrative 13 remedies.” Ex. B at 3, Ex. D at 3. Mr. Turner thus was expressly informed that the institutional- 14 level response did not exhaust his administrative remedies, yet still failed to appeal to the 15 headquarters level. 16 The PLRA requires “proper exhaustion” of available administrative remedies. Woodford 17 v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion,” in turn, “demands compliance with an 18 agency’s deadlines and other critical procedural rules because no adjudicative system can function 19 effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91 20 (footnote omitted). 21 Here, Mr. Turner was expressly informed of the steps he needed to take in order properly 22 to exhaust the First and Third Grievances, and he failed to take those steps. He does not provide 23 any explanation for this failure. See generally, Docket No. 17 (“Opposition”). Accordingly, the 24 Court concludes that Mr. Turner failed properly to exhaust his claim in the First and Third 25 Grievances. 26 C. The Second Grievance was not Exhausted Prior to this Suit Being Filed 27 The record reveals that Mr. Turner did not appeal his Second Grievance to the 1 Grievance on July 21, 2020. See Ex. C at 2, 5; see also supra II.B. However, Mr. Turner filed the 2 instant civil rights action on April 16, 2020. See Docket No. 1 at 3; see also Houston, 487 U.S. at 3 270-71 (1988). Mr. Turner thus waited until after he filed the instant lawsuit to attempt to exhaust 4 the Second Grievance. This is impermissible; the law is clear that “a prisoner must exhaust his 5 administrative remedies for the claims contained within his complaint before that complaint is 6 tendered to the district court.” Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) 7 (emphasis added). 8 Mr. Turner appears to argue that headquarters delayed responding to the Second Grievance 9 beyond the permitted time. See Docket No. 28. at 3 (filing by Mr. Turner, styled “Motion for 10 Renewal for Exhaustion and Merits of his Claims”).3 Even if this is true,4 it does not change the 11 fact that Mr. Turner did not even appeal the Second Grievance to the headquarters level until more 12 than one week after the instant action was filed. Compare Docket No. 1 at 3 with Ex. C at 5; see 13 also supra II.B. The Second Grievance thus had not been exhausted when Mr. Turner filed the 14 instant action. Cf. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001) (holding 15 that prisoner who never received a response to his first-level grievance failed to satisfy exhaustion 16 requirement because time period for prison response had not expired before he filed suit). 17 Because Mr. Turner did not receive, or even seek, a headquarters-level response to the 18 Second Grievance before filing suit, he failed to exhaust that grievance before the instant lawsuit 19 was filed. 20 D. Amendment would be Futile 21 The Court will not permit Mr. Turner merely to amend his pleading at this time, because 22 amendment would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 23 1041 (9th Cir. 2011) (“[A] district court may dismiss without leave [to amend] where . . . 24 3 Defendants moved to strike this motion. See Docket No. 30. Because the motion does not help 25 Mr. Turner’s case in any event, Defendants’ motion to strike is denied.

26 4 The relevant regulation requires a headquarters-level response “within 60 business days” of the date a health care grievance appeal is received. Cal. Code Regs. tit. 15, § 3999.230(f). Even if 27 headquarters received Mr. Turner’s appeal the same day that it was sent, its response appears to 1 amendment would be futile.”).5 2 Because Mr. Turner filed his claims before fully exhausting his administrative remedies in 3 the Second Grievance, an amended complaint would not cure the failure to exhaust. See 4 McKinney, 311 F.3d at 1199 (an action is subject to dismissal if the plaintiff exhausts while the 5 action is pending, rather than before filing suit); Vaden, 449 F.3d at 1051 (same). As noted above, 6 “‘a suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; 7 the district court lacks discretion to resolve the claim on the merits, even if the prisoner exhausts 8 intra-prison remedies before judgment.’” McKinney, 311 F.3d at 1200 (emphases added) (quoting 9 Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th Cir.1999)). The Court therefore cannot allow 10 Mr. Turner to amend his claim. 11 Although Mr. Turner will not be permitted to amend in this action, dismissal of this action 12 will be without prejudice. For Mr. Turner’s benefit, the Court explains that this means Mr. Turner 13 may file an entirely new action to pursue the currently unexhausted claim, rather than filing an 14 amended complaint in the instant action. The Court recognizes that this step may “occasion the 15 expenditure of additional resources on the part of” Mr. Turner. McKinney, 311 F.3d at 1200. 16 Nevertheless, the Ninth Circuit has expressly held that courts are required to dismiss in this 17 situation, even though a litigant may be inconvenienced. See id. (stating that Congress has “made 18 a policy judgment that” the parties’ inconvenience is “outweighed by the advantages of requiring 19 exhaustion prior to the filing of suit”). 20 VI. PLAINTIFF’S MOTIONS 21 Mr. Turner filed several motions, which the Court now terminates or denies as appropriate. 22 First, Mr. Turner’s “Motion for Renewal for Exhaustion and Merits of his Claims,” which 23 the Court addressed above, is more properly considered a sur-reply. See Docket No. 28. The 24

25 5 See also Bobadilla v. Lizarraga, 834 F. App’x 376, 377 (9th Cir. 2021) (affirming dismissal of prisoner’s complaint at screening without leave to amend because amendment would have been 26 futile); Williams, 840 F. App’x at 213 (“We conclude amendment would have been futile because it would not cure Williams’ failure to exhaust available administrative remedies.”); Mahone v. 27 Morgan, 135 F. App’x 930, 931 (9th Cir. 2005) (“The district court did not abuse its discretion in 1 Clerk shall terminate this mislabeled motion. 2 Second, Mr. Turner filed a “Motion for Reconsideration for Appointment of Counsel.” 3 Docket No. 29. With this motion, Mr. Turner appears to seek reconsideration of the Court’s 4 earlier order denying his request for counsel. See Docket No. 27. This motion is DENIED first 5 because Mr. Turner provides no reason why the Court should revisit its earlier determination that 6 counsel is not warranted, and second because this entire action fails due to Mr. Turner’s 7 nonexhaustion, and so his request for counsel is moot. 8 Third, Mr. Turner filed a “Motion to Reply.” Docket No. 32. Although far from clear, Mr. 9 Turner appears to want Defendants to file an Answer to the First Amended Complaint. See id. 10 Defendants filed a dispositive motion in lieu of an Answer, and Mr. Turner’s case fails because 11 Mr. Turner failed to exhaust his administrative remedies before filing suit. This motion therefore 12 is DENIED as moot. 13 VII. CONCLUSION 14 For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED. 15 Docket No. 14. Defendants are entitled to judgment as a matter of law in their favor on the 16 affirmative defense of nonexhaustion of administrative remedies. 17 However, judgment is without prejudice to plaintiff filing a new action raising his Eighth 18 Amendment claim, once that claim is properly exhausted. 19 This order disposes of Docket Nos. 14, 28-30, and 32. The Clerk shall enter judgment and 20 close the file. 21 The Court certifies that any appeal of this order is not taken in good faith. See 28 U.S.C. 22 § 1915(a)(3). 23 24 IT IS SO ORDERED. 25 26 Dated: March 21, 2022 27 ______________________________________