Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Terry L. Stewart, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Eddie Hatch, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 04-0541-PHX-JWS (LOA) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

LMH

Plaintiff Eddie Hatch, a state prisoner, filed this action claiming that he was denied adequate medical care and retaliated against for seeking treatment. Presently pending is Defendants' Motion for Summary Judgment (Doc. #51). Plaintiff has responded, and Defendants have replied (Doc. ##59-60). The Court will grant Defendants' Motion for Summary Judgment on Counts II and III, but deny the motion on Count I. There will be an opportunity for additional briefing for Count I. I. Procedural Background Previously, Plaintiff filed a civil rights action raising the same claims as in this action. Hatch v. Stewart, No. CV 02-1791-PHX-CLH (D. Ariz.). The action was dismissed for lack of exhaustion. Id. (Ord. & J, Doc. #51-#52). Plaintiff then attempted to exhaust his remedies and returned to federal court and filed the present action. Plaintiff has a history of back trouble and prior to the events in suit, he had two back surgeries. In his Complaint, he alleged that his medical care was inadequate and that he was
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retaliated against for seeking medical care. Plaintiff sued 11 Defendants: (1) former Arizona Department of Corrections (ADC) director Terry Stewart; (2) Drs. Kanter, Lutz, Macabuhay, and Whitney; (3) Facility Health Administrator Jim Taylor; (4) Lieutenant Lawrence; (5) Sergeant Zapien, and (6) Corrections Officers Hunt, Lee, Whiting and Putnam. In Count I of his Complaint, Plaintiff alleged that in early 2002, Drs. Macabuhay, Whitney and Kanter delayed referring him to an outside specialist for his back pain, and that ADC Director Stewart, Facility Health Administrator Taylor and Dr. Lutz failed to respond to his written requests for emergency treatment (Compl. at 4-4c). In Count II, Plaintiff alleges that on March 17, 2002, Sgt. Zapien ordered CO Hunt to "write up" Plaintiff for faking an injury and refused to give Plaintiff his meals in his cell as required by a medical lay-in (Compl. at 5-5a). In Count III, Plaintiff alleges that Lt. Lawrence, CO Lee, Co Whiting and CO Putnam were deliberately indifferent to his medical needs by moving him to an upper bed on an upper tier after his back surgery on June 28, 2002, and he fell on the steps and was injured. Defendants answered the Complaint pursuant to the Court's screening order, and deadlines for discovery and dispositive motions were set (Doc. ##31, 32, 44). The Court granted Defendants an extension of time to file a dispositive motion, and they subsequently sought summary judgment (Doc. ##49, 51). In their motion, Defendants contend that (1) Counts II and III are not exhausted; (2) Defendants were not deliberately indifferent to Plaintiff's medical needs; (3) Defendants did not retaliate against Plaintiff; and (4) Defendants are entitled to Eleventh Amendment immunity in their official capacities. They also assert the defense of qualified immunity (Doc. #51). Plaintiff responds that (1) he exhausted his remedies; (2) Defendants were deliberately indifferent to his medical needs; (3) there is a disputed issue of fact regarding retaliation; (4) Defendants are not entitled to Eleventh Amendment immunity for actions taken in their individual capacities; and (5) Defendants are not entitled to qualified immunity (Doc. #59).

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Defendants reply that Plaintiff's reiteration of facts alleged in his Complaint are not sufficient to withstand summary judgment (Doc. #60). II. Exhaustion A. General Standard The issue of exhaustion must precede consideration of the merits issue raised in the summary judgment motion. See Perez v. Wisconsin Dep't of Corrections, 182 F.3d 532, 536 (7th Cir. 1999). Plaintiff must exhaust available administrative remedies before bringing this action. See 42 U.S.C. § 1997e(a); Vaden v. Summerhill, 449 F.3d 1047,1050 (9th Cir. 2006). Exhaustion is required regarding all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 (2002), regardless of the type of relief offered through the administrative process, Booth v. Churner, 532 U.S. 731, 741 (2001). Defendants bear the burden of raising and proving the absence of exhaustion. Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). Exhaustion is a matter of abatement in an unenumerated Rule 12(b) motion. Id. at 1119-20. Because Defendants raised the issue in a motion for summary judgment, the court must treat the summary judgment motion as an unenumerated motion under Rule 12(b). Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 F.2d 365, 368-69 (9th Cir. 1988) (quotation omitted). The differences between the two are that summary judgment is on the merits while exhaustion is not, and summary judgment does not permit the court to resolve disputed issues though exhaustion requires it. Wyatt, 315 F.3d at 1119-20 n.14. B. Analysis Defendants concede that Plaintiff exhausted Count I. They contend, however, that Counts II and III were not exhausted because Plaintiff did not appeal through all levels of review. In support, they submit the affidavit of Aurora Aguilar, a Hearing Officer who tracks inmate grievance appeals (Defs.' Statement of Facts, Ex. 4, Aguilar Aff., ¶ 2, Doc. #52).

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According to Aguilar, the ADC's grievance process requires the following steps: (1) an inmate must first seek to informally resolve a complaint by filing an Inmate Letter within 10 days after becoming aware of the problem; (2) an inmate who is not satisfied with the response to the Inmate Letter must file a formal grievance within 10 days to the grievance coordinator; (3) an inmate who is not satisfied with the response to the formal grievance must file an appeal within 10 days to a higher official such as a warden or deputy warden; and (4) if the inmate is not satisfied with the response to the appeal, the inmate must appeal to the ADC Director within 10 days. (Aguilar Aff., ¶ 5). Augilar asserts that Plaintiff did not file an appeal to the ADC Director

9 for his claims in Count II and III. Id., ¶¶ 11-12. 10 In response, Plaintiff contends that he exhausted all of his claims after his previous 11 civil rights action was dismissed for lack of exhaustion on December 9, 2003. As proof, he 12 attaches copies of grievances as Exhibit B. The copies show, however, that his attempts were 13 returned unprocessed. He was told that he was "out of time frames" to file a grievance, and 14 when he attempted to appeal that decision, he was informed that unprocessed grievances may 15 not be appealed. These responses were consistent with the ADC's grievance policy, which 16 provides that the failure to timely file an Inmate Letter "shall result in the inmate's forfeiture 17 of the opportunity to pursue a formal grievance though the Department's Inmate Grievance 18 System." (Aguilar Aff., Attach A., ¶ 802.08 (1.1.1); ¶ 802.11 (1.1.1)). 19 Recently, the Supreme Court held that to be "properly exhausted," the prisoner must 20 complete the administrative review process in accordance with the applicable rules, including 21 deadlines, as a precondition to bringing suit in federal court. Ngo v. Woodford, No. 05-416, 22 2006 WL 1698937, at *7-*12 (U.S., June 22, 2006). The Ninth Circuit has also indicated 23 that prisoners "are obligated to navigate all a prison's administrative review process." Brown 24 v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005). Although Plaintiff attempted to exhaust his 25 claims after his first lawsuit was dismissed, his attempts were rejected in the grievance 26 process because he failed to comply with the prison's rules regarding deadlines. He failed 27 to exhaust his remedies when they were "available" to him, and he cannot excuse that failure 28
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because the remedies are no longer "available." Consequently, he has not adequately rebutted Defendants' assertion that he failed to exhaust these claims. These claims will be dismissed without prejudice for lack of exhaustion. III. Count I In Count I, Plaintiff alleges that Drs. Macabuhay, Whitney and Kanter delayed in referring him to an outside specialist, and Defendants Stewart, Lutz and Taylor were deliberately indifferent by failing to require the physicians to refer him. Defendants contend that the physicians were not deliberately indifferent and the other three Defendants were not aware at the time. A. Limitation Period At the outset, the Court rejects Defendants' contention, made in a footnote, that any claims that concern events prior to March 17, 2002 are time-barred (Mot. at 10 n.2). First, Defendants have overlooked the prison mailbox rule, which set the date of filing as the date the Complaint was handed to prison officials for mailing, not the date the Complaint was received by the Court for filing (March 17, 2004). See Houston v. Lack, 487 U.S. 266, 27071 (1988); Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). In this case, that issue is unresolved but at least appears to be sometime prior to March 17. Plaintiff's Complaint does not bear a signature, but his application to proceed in forma pauperis is dated February 9, 2004, and he presumably handed his Complaint for mailing at a time near that day. Moreover, the question is not when the events in suit occurred, but when the claim accrued. "[A] claim generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action." Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998). Given that Plaintiff appears to be asserting a continuing injury in the failure to treat his back for several months, Defendants have not focused upon the proper standard for the running of the limitation period. Also, the running of the two-year limitation period between 2002 and the filing date of this action in 2004, was likely tolled by Plaintiff's pursuit of the administrative process.
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Pursuit of administrative processes had been held to toll the running of the limitation period. The law of the forum state regarding tolling applies when not inconsistent with federal law. Johnson v. State of California, 207 F.3d 650, 653 (9th Cir. 2000). Under Arizona law, the limitation period is tolled during mandatory exhaustion of administrative remedies. See Arizona Dep't of Revenue v. Dougherty, 29 P.3d 862, 869 (Ariz. 2001); Third & Catalina Assoc. v. City of Phoenix, 895 P.2d 115, 119 (Ariz. Ct. App. 1994); see also A.R.S. § 12821.01(C) (cause of action required by law or contract to be submitted to administrative review process does not accrue until process exhausted). Federal courts have also recognized that tolling provisions apply to prisoner § 1983 actions subject to the mandatory exhaustion requirement of 42 U.S.C. § 1997e(a). See Brown v. Morgan, 209 F.3d 595 (6th Cir. 2000); Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999); see also Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir. 1987). Given these circumstances, Defendants' contention that any claims which concern events prior to March 17, 2002 are time-barred, is unsupported. Finally, as a matter of practice, contentions which may be dispositive of an issue should not raised in a footnote, nor should they be raised in a conclusory fashion without an explanation of the facts and law. B. Deliberate Indifference After examining the exhibits attached to Defendants' motion and Plaintiff's Response, the Court has concluded that the procedural posture of this case may have caused the parties to focus a disproportionate amount of their evidence on the unexhausted claims. The reason for that conclusion is that there is a lack of evidence regarding the deliberate indifference claim in Count I. In particular, Defendants have not included an affidavit from a single one of the four physicians who allegedly failed to treat Plaintiff, nor are there any affidavits from the former ADC Director or Facility Health Administrator. Oddly enough, Defendants rely on the allegations in Plaintiff's Complaint for the background facts regarding Count I. The only other evidence they submit are unexplained medical records (DSOF at ¶¶ 6). A medical records librarian attested that there are 906 pages of Plaintiff's records (Goodman Aff., ¶ 2).
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Defendants submitted 147 of the 906 pages that they deemed relevant (DSOF at 2 n.2, Doc. #52), and then referred the Court to 13 of the 147 pages. There is no affiant, however, to explain the facts that may be reflected in the 13 pages, and the Court will not conjure up the relevant facts by its own interpretation of notes made by medical personnel. Defendants also refer to the affidavit of Aurora Aguilar to support a statement that Plaintiff wrote a letter to a deputy warden stating that he was going on a hunger strike because he was not receiving adequate medical care, and that the deputy warden responded that Plaintiff would be scheduled for an MRI in the near future (DSOF at 3, ¶ 7). Ms. Augilar, however, only attested to having knowledge about grievance records, and she has no personal knowledge of the underlying facts reflected in grievance. See Fed. R. Civ. P. 56(e) (affidavits shall be made on personal knowledge). Thus, Defendants cannot rely on her affidavit to show the facts underlying Count I. In light of Defendants' lack of evidence, it is not surprising that Plaintiff's Response included an affidavit that contained more general allegations than the detailed allegations in Count I of his verified Complaint. Compare Pl.'s Aff.,¶¶ 4-8 and Compl. at 4-4c. For summary judgment, the moving party must show the absence of a triable issue of fact entitling the moving party to judgment as a matter of law. Fed. R. Civ. P. 56(c). This does not mean that the moving party must produce evidence to support its motion, but instead must point out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Defendants have not pointed to a lack of evidence to support Plaintiff's Eighth Amendment claim, and instead have pointed to Plaintiff's factual allegations in his verified Complaint which, unrebutted, show that there is a triable issue of fact. Accordingly, the Court will deny Defendants' summary judgment motion on Count I. Defendant will be allowed 30 days to file a second motion for summary judgment on Count I. Plaintiff will have 30 days to respond. No reply will be permitted.

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IT IS ORDERED: (1) Defendants' Motion for Summary Judgment (Doc. #51) is granted in part and denied in part. Counts II and III are dismissed without prejudice for lack of exhaustion, and Defendants Lawrence, Zapien, Hunt, Lee, Whiting and Putnam are dismissed. The

remaining claim is Count I against Stewart, Taylor, Kanter, Macabuhay, Whitney, and Lutz. (2) Defendants have 30 days to file a second motion for summary judgment on Count I. Plaintiff will have 30 days to response. No reply will be permitted. DATED this 20th day of July 2006.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT COURT JUDGE

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