Akhtar v. Mesa

Decision Date05 November 2012
Docket NumberNo. 11–16629.,11–16629.
Citation698 F.3d 1202
PartiesJaviad AKHTAR, Plaintiff–Appellant, v. J. MESA, S. Turner; L. Ward, individually and in their official capacities, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Carter C. White and Roya S. Ladan (argued), U.C. Davis School of law, Davis, CA, for the plaintiff-appellant.

Misha Igra, AGCA—Office of the California Attorney General, Sacramento, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, Frank C. Damrell, Jr., District Judge, Presiding. D.C. No. 2:09–CV–2733–FCD–GGH P.



ALARCÓN, Circuit Judge:

In this prisoner civil rights action filed pursuant to 42 U.S.C. § 1983, Javiad Akhtar appeals from the dismissal with prejudice of his first amended complaint for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. In his complaint, Akhtar alleged that Correctional Officer J. Mesa and Correctional Sergeant S. Turner (Appellees) violated his federal constitutional rights by failing to comply with his medical “chrono,” 1 which required him to be housed in a ground floor cell.2 He also alleged that Appellees failed to provide him with an interpreter at medical appointments. We must decide whether the district court erred by (1) refusing to consider arguments that Akhtar raised for the first time in his objections to a magistrate judge's findings and recommendations on Appellees' motion to dismiss, (2) concluding that Akhtar failed to exhaust his administrative remedies, and (3) dismissing his complaint on the ground that he failed to state a claim upon which relief can be granted. After reviewing the record and relevant authority, we vacate the judgment and remand.


Akhtar is a California prisoner incarcerated at Mule Creek State Prison. He suffers from numerous medical conditions, including chronic kidney disease, coronary artery disease, uncontrolled hypertension, hyperlipidemia (high cholesterol), cerebrovascular accident (stroke), hyperuricemia (gout), and gastroesophageal reflux disease. Akhtar has “little English speaking or reading skills, ... has been deemed illiterate, ... [and] has permanent brain damage from a motorcycle accident.” He is also mobility and hearing impaired.

On December 2, 2008, Akhtar was informed by Officer Mesa that he was being moved to an emergency bunk (“E–bunk”) located in an open dormitory in the day room of the building. He showed Officer Mesa and Sergeant Turner his medical chrono and told them that he would rather go to Administrative Segregation (“Ad–Seg”) than move to an E–bunk. He was issued a CDC–115 3 Rules Violation Report and placed in Ad–Seg for refusing to move from his cell to an E–bunk in the dayroom of the prison.

On December 9, 2008, Akhtar received another CDC–115 for refusing to move to an E–bunk in the dayroom. Officer Mesa and Sergeant Turner were not involved in that incident.

Akhtar was subsequently moved to a triple bunk E–bunk in the dayroom, at least 75 feet from the closest urinal. Akhtar fell from his bunk bed and broke his wrist. He also suffered embarrassment and humiliation because, given that there were only two toilets and one urinal for the forty beds in the day-room, he was often unable to reach the restroom in time and urinated in his clothes.

Akhtar filed a grievance on January 1, 2009, in which he appealed the December 9, 2008 CDC–115 Rules Violation Report. In the grievance, Akhtar stated that prison staff were deliberately indifferent to his well-being and that he was denied due process because he did not receive an interpreter and staff assistant. Akhtar's administrative grievance was denied, as was his Second Level Appeal and Director's Level Appeal.

Akhtar filed a second grievance on January 5, 2009, in which he appealed the December 2, 2008 CDC–115 Rules Violation Report. In that grievance, Akhtar stated that he “was punished for protecting [his] rights.” Akhtar contended that he was justified in refusing to move to the E–bunk because his chrono excluded him from “Dayroom and Gym dormitory bunk living.” Akhtar alleged that the corrections officials were aware of his medical condition, but were deliberately indifferent to it in ordering that he be transferred to an E–bunk. Akhtar also stated that his due process rights were violated because he was not provided an interpreter or staff assistant. Akhtar's grievance was denied, as was his Second Level Appeal and Director's Level Appeal.

On October 1, 2009, Akhtar filed a complaint in the district court against Officer Mesa and Sergeant Turner. In his initial complaint, Akhtar stated a claim under 42 U.S.C. § 1983 for deliberate indifference to his serious medical needs, based on Appellees' failure to comply with his medical chrono regarding his housing needs. Akhtar attached the January 1, 2009, and the January 5, 2009 grievances as exhibits to his complaint, along with copies of the Second Level Appeals and Director's Level Decisions. Magistrate Judge Gregory G. Hollows dismissed Akhtar's initial complaint pursuant to 28 U.S.C. § 1915A(b), with leave to amend. Thereafter, Akhtar filed his first amended complaint. In that complaint, Akhtar re-alleged a deliberate indifference claim pursuant to the Eighth Amendment based on Appellees' failure to comply with his medical chrono regarding housing. He also alleged two new claims for deliberate indifference to a serious medical need based on the failure to provide an interpreter at medical appointments, and a requirement that he pay a $350 filing fee.

Akhtar attached several documents as exhibits to his first amended complaint. They included medical records, a Comprehensive Accommodation Chrono, a Disability Placement Program Verification form, and a February 11, 2010 Second Level Appeal Response regarding his request for an interpreter at medical appointments and institutional hearings. Akhtar did not attach to his first amended complaint copies of his January 1 and 5, 2009 grievances and his administrative appeals.

Magistrate Judge Hollows issued a screening order, pursuant to 28 U.S.C. § 1915A(a), in which he stated that Akhtar had filed “a cognizable claim for relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1915A(b) against the individual appellees. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.”

Appellees filed a motion to dismiss the first amended complaint for failure to exhaust his administrative remedies or to state a claim upon which relief can be granted. Magistrate Judge Hollows advised Akhtar that the failure to file a written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the motion pursuant to Local Rule 230(1). Akhtar did not file an opposition to the motion. Magistrate Judge Hollows concluded that Akhtar's failure to file an opposition “should be deemed a waiver of opposition to granting the motion.” In his findings and recommendations, he also determined that Akhtar had failed to exhaust his administrative remedies and failed to state a claim under the Eighth Amendment.

Akhtar filed an objection to Magistrate Judge Hollows's findings and recommendations. He asked that the district court construe his objection to the findings and recommendations as an opposition to Appellees' motion to dismiss. Akhtar attached copies of the January 1 and January 5, 2009 grievances, and related administrative appeals, to his objection to the findings and recommendations. The district court issued an order declining to consider Akhtar's objections to the motion to dismiss his first amended complaint. It adopted Magistrate Judge Hollows's findings and his recommendations; dismissed the first amended complaint with prejudice; and entered judgment in favor of Appellees.

On May 5, 2011, Akhtar filed a motion to alter or amend the judgment which the district court denied. Akhtar filed a timely notice of appeal. The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.4


Akhtar contends that the district court abused its discretion in refusing to consider the arguments that he raised in his objections to Magistrate Judge Hollows's findings and recommendations. He also maintains that, even if the district court had “actually exercised its discretion,” it abused that discretion by failing to consider his arguments. We review this issue for abuse of discretion. Brown v. Roe, 279 F.3d 742, 744 (9th Cir.2002).

In United States v. Howell, 231 F.3d 615, 621 (9th Cir.2000), we joined the First and Fifth Circuits in holding “that a district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation.” We cautioned, however, that “in making a decision on whether to consider newly offered evidence, the district court must actually exercise its discretion, rather than summarily accepting or denying the motion.” Id. at 622.

In Brown, applying Howell, we concluded that the district court had failed to “actually exercise[ ] its discretion,” as there was nothing in the record that showed that it had. Brown, 279 F.3d at 745 (citing Howell, 231 F.3d at 622). We stated that there was “nothing in the record that shows the district court ‘actually exercise[d] its discretion,’ in refusing to consider Brown's newly-raised claim.” Id. (alteration in original) (quoting Howell, 231 F.3d at 622). We also explained that, given that the plaintiff was pro se and had presented a “relatively novel claim under a relatively new statute...., even if the district court had ‘exercised its discretion,’ it would have been an abuse of that discretion to refuse to...

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